Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered). (2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that: (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations; (ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans; (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment; (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans); (v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and (vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 5 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2016 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the 2016 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans and/or 2016 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B-1 Loans or 2016 Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2016 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2016 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2016 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2016 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2016 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent a
Appears in 5 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Amendment Agreement No. 8 (ADT Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, on one or more occasions, request Incremental Term Loan Commitments in an additional aggregate principal amount not to exceed $100,000,000 the Incremental Commitment Cap from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but no such Lender each of which shall be required entitled to agree or decline to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Personsole discretion)) willing to provide such Incremental Term Loans Commitments, as the case may be, in their sole discretion own discretion; provided, that (such Lendersi) each Incremental Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the “Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Term Loan Lenders”Lender is an existing Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any underwriting, upfront or similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Commitment to comply with this clause (ii). Such notice shall set forth (i1) 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 $10,000,000 and minimum increments of $10,000,000, (or remaining permitted amount or, in each case, such lesser amount approved by as the Administrative AgentAgent may agree) or equal to the remaining Incremental Amount), (ii2) whether the aggregate amount of Incremental Commitments, which shall not exceed the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Amount, and (iii3) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after “Increased Amount Date”). The Borrower shall have no obligation to offer any Lender the date such notice is delivered)opportunity to participate in any Incremental Commitments.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and 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 increase the Commitments by the amount of the Incremental Commitments evidenced thereby. Any such other documentation as deemed amendment may be memorialized in writing by the Administrative Agent shall reasonably specify with the Borrower’s written consent (not to evidence be unreasonably withheld) and furnished to the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:other parties hereto.
(ic) Notwithstanding the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are 4.02 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (andand executed by an Authorized Officer of the Borrower, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions as other closing certificates and documentation to such matters as are the extent reasonably requested required by the Administrative Agent. Upon any increase , and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of any existing Class Incremental Commitments are secured by the Collateral ratably with all other Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that the Borrowings all Revolving Loans in respect of such Class Incremental Commitments, when originally made, are held by the Lenders included in each Borrowing of such Class outstanding Revolving Loans on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderbasis.
Appears in 4 contracts
Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred prior to the twelve month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding Commitments outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and Loans, as reasonably determined by (y) any Borrowing at the Borrower time such Borrowing is made and (except to B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment and the incurrence or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Indebtedness thereunder and use of proceeds therefrom; Default under Section 7.01(b), (xc), (h) the conditions set forth in clauses or (ai) shall have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 of any the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, such terms as shall be reasonably satisfactory to such Issuing Bank or Swingline Lender, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata
Appears in 4 contracts
Sources: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. At any time following the earlier of (1x) The completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may, may by written notice to the Administrative Agent from time elect to timerequest an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Facility Commitments” and together with the Incremental Term Loan without its consent) and shall be subject to such consentsRevolving Facility Commitments, if any, as would be required the “Incremental Commitments”), in connection with an assignment aggregate principal amount, collectively, not to exceed the greater of (x) U.S.$50.0 million and (y) U.S.$100.0 million if on a Term Loan Pro Forma Basis, after giving effect to such Person) willing to provide the incurrence of such Incremental Term Loans in their sole discretion (or such LendersIncremental Revolving Facility Commitments, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000First Lien Leverage Ratio would not exceed 3.50 to 1.00, or remaining permitted amount or, in each case, such a lesser amount approved by in integral multiples of U.S.$5.0 million. Such notice shall specify the Administrative Agent)date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, (ii) whether and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans to Loans, shall be borrowed pursuant to such Incremental Term Loan Commitments are to made available, which shall be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) date not less than 5 Business Days after the date on which such Incremental Term Loan Commitments are requested notice is delivered to become effective the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which shall, unless otherwise agreed by in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, be not less than ten Business Days after and in the date such notice is delivered).
(2) The Loan Partiescase of any Person committing to any Incremental Revolving Facility Commitment, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver reasonably acceptable to the Administrative Agent Issuing Banks and the Swingline Lenders (each, an Additional Credit Extension Amendment and such other documentation “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as the Administrative Agent shall reasonably specify applicable) to evidence whom the Incremental Term Loan Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that 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. Each Additional Credit Extension Amendment pursuant to this clause Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (d) shall specify the terms of the applicable “Incremental Term Loans”) shall be made on such Increased Amount Date; provided that:
that (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Term Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans and (vii) if the incurrence Applicable Margin for any Incremental Term Loan exceeds the then applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of Indebtedness thereunder (assuming that A) such commitments are fully drawn on such dateApplicable Margin for the Incremental Term Loans over (B) the Applicable Margin for the Revolving Facility plus 50 basis points being the relevant “Margin Differential”), then each Applicable Margin for the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Margin Differential effective upon the making of the Incremental Term Loan. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and use terms of proceeds therefromthe Incremental Commitments and the Incremental Term Loans evidenced thereby, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as the Borrower may revise this Agreement to evidence such matters as are reasonably requested by amendments without the Administrative Agent. Upon any increase consent of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 3 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Incremental Commitments. (1a) The After the Spinoff Date has occurred, the Borrower Representative may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Banks (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term A Loans, unless otherwise agreed by as applicable, form a single Class of) the Administrative AgentInitial Term A Loans or (y) commitments to make term loans with pricing, be not less than ten Business Days after maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredInitial Term A Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent applicable Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any (x) commitments to make additional Initial Term A Loans shall not be guaranteed by any Subsidiaries have the same terms as the Initial Term A Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Initial Term A Loans and (y) Incremental Revolving Facility Commitments shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank equally and ratably in right of security with the existing Loans,
(iii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date and participation in mandatory prepayments (Bwhich shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the applicable Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no the Borrowers shall be in Pro Forma Compliance immediately after giving effect to the incurrence of such Incremental Facility and the use of proceeds thereof with the Financial Covenant as of the last day of the then most recently ended Test Period; provided that in the case of any Incremental Facility used to finance a Permitted Acquisition, and to the extent the Incremental Term Loan Lenders participating in such Incremental Facility agree, this clause (v) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis with basis) than the then outstanding Initial Term A Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) there shall be no borrower (other than a Borrower) or guarantor (other than the Loan Parties) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Incremental Term Loans and Incremental Revolving Facility Commitments shall have such interest ratesnot be secured by any asset of Parent or its Subsidiaries other than then Collateral. Each party hereto hereby agrees that, optional prepayment provisions upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower Representative’s consent (except that any Incremental Term Loans forming an addition not to an existing Class of Term Loans shall have be unreasonably withheld) and furnished to the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the applicable Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a Permitted Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited such that the availability of such Incremental Term Loans shall only be subject to the accuracy of customary “specified representations” and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 3 contracts
Sources: Credit Agreement (Adient PLC), Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Incremental Commitments. (1) The At any time following the Closing Date, the Borrower may, may from time to time by written notice to the Administrative Agent from time elect to timerequest an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Loan Commitments Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed $100,000,000 from one or more Eligible Assignees350.0 million, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, a lesser amount in integral multiples of $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser amount approved number of days as may be agreed to by the Administrative Agent), (iiAgent in its sole discretion) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) after the date on which such Incremental Term Loan Commitments are requested notice is delivered to become effective the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which shall, unless otherwise agreed by in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, be not less than ten Business Days after and in the date such notice is delivered).
(2) The Loan Partiescase of any Person committing to any Incremental Revolving Facility Commitment, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent extent such consent would be required with regard to an Additional Credit Extension Amendment assignment to such Person pursuant to Section 9.04, reasonably acceptable to the Issuing Banks and such other documentation the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as the Administrative Agent shall reasonably specify applicable) to evidence whom the Incremental Term Loan Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that 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. Each Additional Credit Extension Amendment pursuant to this clause Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (d) shall specify the terms of the applicable “Incremental Term Loans”) shall be made on such Increased Amount Date; provided that:
that (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Term Loans Loans; (ii) [reserved]; (iii) the Borrower and the incurrence of Indebtedness thereunder its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments (assuming that such commitments the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn on such datedrawn) and use Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of proceeds therefrom, the most recently ended fiscal quarter of the Borrower would and its Restricted Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in compliance with Section 8.11 and (z) the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall have received documents make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; and legal opinions as (vi) the Borrower and its Affiliates shall not be permitted to such matters as are reasonably requested by commit to or participate in any Incremental Commitments or make any Incremental Term Loans. Each of the Administrative Agent. Upon any increase parties hereto hereby agrees that, upon the effectiveness of any existing Class joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Term LoansLoans evidenced thereby, the Lenders shall take any action as may be reasonably required by and the Administrative Agent and the Borrower may revise this Agreement to ensure that evidence such amendments without the Borrowings consent of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each any Lender.
Appears in 3 contracts
Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class or the establishment of a new Class of Extended Revolving Commitments, as applicable, in an aggregate amount (excluding Refinancing Term Loans and any Extended Revolving Commitments that are established concurrently with the reduction in any then existing Class of Revolving Commitments) not to exceed $100,000,000 600,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan or additional Revolving Commitment without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan or Revolving Commitment, as applicable, to such Person) willing to provide such Incremental Term Loans and/or additional Revolving Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or additional Revolving Commitments being requested (which shall be in a minimum amount of $10,000,000 25,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) (x) in the case of Incremental Term Loan Commitments, whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (y) in the case of any additional Revolving Commitments, whether such Revolving Commitments are to be an increase in any existing Class of Revolving Commitments or a new Class of Extended Revolving Commitments and (iii) the date on which such Incremental Term Loan Commitments and/or increased Revolving Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment or additional Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term LoansLoans and/or additional Revolving Commitments; provided that:
(i) any additional Revolving Commitments shall have the same terms as the then existing Revolving Commitments (except for upfront and arrangement fees and except that any Extended Revolving Commitments may have different terms to the extent permitted by subclause (vi) below);
(ii) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (Aiii) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (Bb) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iiiiv) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(ivv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(vvi) subject to the above, any Incremental Term Loans and Extended Revolving Commitments shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans or Extended Revolving Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vivii) subject to Section 1.061.10, no Incremental Term Loan Commitment or additional Revolving Commitment shall become effective under this Section 2.01(b2.01(d) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment or Revolving Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, date clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans or additional Revolving Commitments and the incurrence of Indebtedness thereunder (assuming assuming, in the case of Incremental Term Loan Commitments, that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Revolving Commitments or Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Revolving Commitments or Term Loans of such Class held by each Lender.
Appears in 3 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Incremental Commitments. (1a) The Borrower or any Co-Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower or such Co-Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2021 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the 2021 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent each applicable Co-Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing ObligationsTerm B-1 Loans or 2021 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2021 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2021 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2021 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2021 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) ha
Appears in 3 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, solely in connection with clause (ii) of the definition of the term “Incremental Amount,” at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation same terms as the Administrative Agent shall reasonably specify Initial Revolving Facility Loans or (y) commitments to evidence make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Facility Loans”) and (iv) in the case of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have Commitments, whether such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation are to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether commitments to make term loans with terms identical to Term B Loans or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basiscommitments to make term loans with pricing, giving effect to such Incremental maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of “Other Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender”).
Appears in 3 contracts
Sources: First Lien Credit Agreement and Security Agreement (Exela Technologies, Inc.), First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.), First Lien Credit Agreement (Exela Technologies, Inc.)
Incremental Commitments. (1a) The Borrowers (or the Borrower Representative on behalf thereof) may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, each Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Lenders, the “Incremental Term Loan Lenders”)Revolving Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall be secured equally and ratably with or, at the option of the Borrowers, shall be junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall (a) be subject to a Permitted Junior Intercreditor Agreement and (b) be established as a separate facility (and documented in a separate loan agreement from this Agreement), and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall be secured equally and ratably with or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be (a) subject to a Permitted Junior Intercreditor Agreement and (b) established as a separate facility (and will be documented in a separate loan agreement from this Agreement)),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and shall have no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Class the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iiiviii) no Incremental Term Loan shall (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans, to the extent secured by Liens on the Collateral equally and ratably with Term B Loans, may participate on a pro rata basis with or a less than pro rata basis (but not a greater than pro rata basis) than the then outstanding Term B Loans in any mandatory prepayment;prepayment hereunder; and
(ivix) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the Borrower (except that effectiveness of any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest ratesAssumption Agreement, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 Representative and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class or which are junior in right of security with Term B Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class or which are junior in right of security with the Initial Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding amount of Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the Latest Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, such terms as shall be reasonably satisfactory to such Issuing Bank or Swingline Lender, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less th
Appears in 2 contracts
Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such aggregate amount of all Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and Incremental Revolving Facility Commitments taken together shall not exceed $285,000,000, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iv) in the Administrative Agentcase of Incremental Revolving Loan Commitments, whether such Incremental Revolving Loan Commitments are to be not less than ten Business Days after Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the date Revolving Loans (“Other Revolving Loans”), and (v) in the case of Incremental Term Loan Commitments, whether such notice is deliveredIncremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Incremental Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by or junior in right of payment and of security with the same Collateral (and no additional collateral) securing the then existing Obligations;
Term B Loans, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (Bx) the Weighted Average Life same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to Maturity the Administrative Agent, (iii) the weighted average life to maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) Incremental Term the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Loans or (y) such interest ratesother terms as shall be reasonably satisfactory to the Administrative Agent, optional prepayment provisions and fees as may (vi) the weighted average life to maturity of any Other Revolving Loans shall be agreed between no shorter than the Lenders providing remaining weighted average life to maturity of the applicable Revolving Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Event of Default Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall exist be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent on up to two (2) occasions during the period from time the Closing Date to timethe eighteen (18) month anniversary of the Closing Date, request Incremental incremental Term Loan Commitments and/or incremental Revolving Commitments, as applicable, in an amount not to exceed the aggregate amount of $100,000,000 130,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender additional Term Lenders and/or additional Revolving Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental incremental Term Loans and/or incremental Revolving Commitments, as the case may be, in their sole discretion own discretion; provided, that each incremental Revolving Lender and incremental Term Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any incremental Lender, such Lendersincremental Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental incremental Term Loan Commitments and/or incremental Revolving Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent)requested, (ii) whether the aggregate amount of all incremental Term Commitments and incremental Revolving Commitments, when taken together with all other incremental Commitments, shall not exceed $130,000,000 in the aggregate (the “Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Limit”), and (iii) the date on which such Incremental incremental Term Loan Commitments and/or incremental Revolving Commitments are requested to become effective (which shallthe “Increased Amount Date”). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, unless otherwise agreed by with the Administrative Agentassistance of the Borrower, be not less than ten Business Days after to arrange a syndicate of Lenders willing to hold the date such notice is delivered)requested incremental Term Commitments and/or incremental Revolving Commitments.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each incremental Term Lender and/or incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental incremental Term Loan CommitmentCommitment of such incremental Term Lender and/or incremental Revolving Commitment of such incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) such documentation shall specify the terms of the applicable Incremental incremental Term LoansLoans and/or incremental Revolving Commitments; provided that:
provided, that (i) the Incremental incremental Term Loans shall not be guaranteed by any Subsidiaries rank pari passu in right of payment and of security with the Borrower that do not guarantee the existing Term Loans and shall be secured on a pari passu basis by have the same Collateral terms as the Term Loans (including as to pricing, maturity and no additional collateralamortization) securing the then existing Obligations;
and (ii) from and after the effectiveness of each amendment or other documentation, the associated incremental Revolving Commitments shall thereafter be Revolving Commitments with the same terms as the Revolving Commitments (A) including as to pricing and maturity). Each of the Maturity Date parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loans such documentation, this Agreement shall be no earlier than amended to the then Latest Maturity Date extent (but only to the extent) necessary to reflect the existence and terms of the incremental Term Commitments and/or incremental Revolving Commitments evidenced thereby (B) including adjusting the Weighted Average Life to Maturity of any Incremental Revolving Percentages and/or the Term Loans Percentages), and new Notes shall be no shorter issued and the Borrower shall make such borrowings and repayments as shall be necessary to effect the reallocation of the Commitments, in each case without the consent of the Lenders other than those Lenders with incremental Revolving Commitments and/or Term Commitments. The fees payable by the remaining Weighted Average Life to Maturity of Borrower upon any then outstanding Class of such incremental Revolving Commitments and/or Term Loans;
(iii) no Incremental Term Loan Commitments shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between upon by the Administrative Agent, the Lenders providing the applicable Incremental with incremental Revolving Commitments and/or Term Loan Commitments and the Borrower (except that at the time of such increase. Notwithstanding the forgoing, nothing in this Section 2.23 shall constitute or be deemed to constitute an agreement by any Incremental Term Loans forming an addition Lender to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);increase its Commitments hereunder.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental incremental Term Loan Commitment or incremental Revolving Commitment shall become effective under this Section 2.01(b) 2.23 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses (a) Section 5.2 shall be satisfied and (b) of Section 5.02 are satisfied whether or not the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant amendment or other documentation and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase of any existing Class of , consistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, and (iii) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to such incremental Term LoansCommitment and/or incremental Revolving Commitments, the Lenders shall Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all incremental Term Loans (other than Term Loans) in the Borrowings form of such Class additional Term Loans, when originally made, are held by the Lenders included in each Borrowing of such Class outstanding Term Loans on a pro rata basis basis, and (ii) all Revolving Loans in accordance with respect of incremental Revolving Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the respective amount of Term Loans of such Class held by each LenderLenders to effect the foregoing.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc), Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent may at any time and from time to timetime request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), request one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees(such Term Loans incurred in connection therewith, in each caseeach, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such an “Incremental Term Loan without its consent) and shall be subject to such consentsLoan” and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenderscollectively, the “Incremental Term Loan LendersLoans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”). Such notice shall set forth ) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a minimum amount new Tranche (i.e., not the same as any existing Tranche of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Loans, Incremental Term Loan Commitments are to be an increase in any existing Class of or other Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallLoans), unless otherwise agreed by the Administrative Agentrequirements of Section 2.15(c) are satisfied), which designation shall be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that:
(i) the , such Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the Borrower relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the then Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (Bb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Incremental then outstanding Term Loans shall with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans;
(iii) no , with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan shall participate on a greater than pro rata basis with denominated in Dollars, if the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (except in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as expressly permitted above to the application of optional or voluntary prepayments among the Incremental Term Loans and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notexisting Term Loans, in each case, taken as a whole, that are not materially more restrictive favorable to the Borrower and its Restricted Subsidiaries, lenders providing such Incremental Term Loans than the terms provisions applicable to the then outstanding Commitments existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably determined satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Borrower Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (except xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent that this Agreement is amended such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to incorporate the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such more restrictive provisions for Incremental Lender, to be in conformity with the benefit requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then existing Lendersremain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(viiii) subject to Section 1.06, no on the date of the making of such new Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect Loans, and notwithstanding anything to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions contrary set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on 2.09, such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class applicable Tranche on a pro rata basis in accordance with (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective amount Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such Class held new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO RateTerm SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO RateTerm SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by each Lenderany the Administrative Agent of the LIBO RateTerm SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 1,000,000 or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms, amortization, participation in mandatory prepayments or commitment reductions, maturity or other terms different from the date Term B Loans (“Other Term Loans”), and (iv) in the case of Incremental Revolving Facility Commitments, the terms of such notice is delivered)the terms of such Revolving Loans, including pricing terms, participation in mandatory prepayments or commitment reductions and maturity.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed have (x) the same terms as the Term B Loans, as applicable, or (y) market terms (as determined in good faith by any Subsidiaries the Borrower) and as set forth in a certificate of a Financial Officer of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;Borrower,
(ii) the Other Term Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans or, at the option of the Borrower, be secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans (Aprovided, that if such Other Term Loans are secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the aboveclause (vi) and (vii) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion and which, for the avoidance of doubt, may include a single financial covenant which would be customary in the market for financings of such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans type (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower in good faith)), the Revolving Loans shall have (except x) substantially the same terms as the Term B Loans (other than the addition of a Financial Performance Covenant) or (y) market terms (as determined in good faith by the Borrower) and as set forth in a certificate of a Financial Officer of the Borrower,
(vi) the Revolving Loans shall be secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans and other Revolving Loans or, at the option of the Borrower, secured by Liens on the Collateral that rank junior to the extent Liens on the Collateral securing the Term B Loans and other Revolving Loans (provided, that this Agreement is amended if such Revolving Loans are secured by Liens on the Collateral that rank junior to the Liens securing the Term B Loans and/or other Revolving Loans, such Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(which shall not require vii) the consent final maturity date of any Lender) to incorporate such more restrictive provisions for Revolving Loans shall be no earlier than the benefit Term B Facility Maturity Date as of the then existing Lenders)date of the applicable Incremental Revolving Facility Assumption Agreement, and
(viii) with respect to any Other Term Loan that ranks pari passu in right of security with the Initial Term B Loans, (x) if the proceeds of such Other Term Loan are used to finance the acquisition of the Option Properties, the All-in Yield may exceed the All-in Yield in respect of the Initial Term B Loans, so long as:
(A) on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis does not exceed 5.41 to 1.00; or
(B) in the event that on the date of incurrence of such Other Term Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis exceeds 5.41 to 1.00, then:
(1) if the Other Term Loans are incurred by a Loan Party prior to the first anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 1.50% and (B) the difference between (i) the All-in Yield of such Other Term Loans and (ii) the All-in Yield of the Initial Term B Loans;
(2) if the Other Term Loans are incurred by a Loan Party on or after the first anniversary of the Closing Date but prior to the second anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 1.25% and (B) the difference between (i) All-in Yield of such Other Term Loans and (ii) the All-in Yield of Initial Term B Loans;
(3) if the Other Term Loans are incurred by a Loan Party on or after the second anniversary of the Effective Date but prior to third anniversary of the Closing Date, the All-in Yield of the Initial Term B Loans shall be increased by an amount equal to the lesser of (A) 0.75% and (B) the difference between (i) All-in Yield of such Other Term Loans and (ii) the All-in Yield of Initial Term B Loans; and
(vi4) subject if the Other Term Loans are incurred by a Loan Party on or after the third anniversary of the Effective Date but prior to Section 1.06fourth anniversary of the Closing Date, no Incremental the All-in Yield of the Initial Term Loan Commitment B Loans shall become effective under this Section 2.01(bbe increased by an amount equal to the lesser of (A) unless 0.25% and (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xB) the conditions set forth difference between (i) All-in clauses (a) and (b) Yield of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Other Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by All-in Yield of Initial Term B Loans: or
(C) the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Other Term Loans are incurred after the fourth anniversary of such Class held by each Lender.the Closing Date; or
Appears in 2 contracts
Sources: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time such Incremental Commitments are committed to) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu in right of security with the Term B Loans,
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially the same terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan; provided thatLoan incurred pursuant to clause (a) of this Section 2.21, the terms applicable to any such Incremental Term Loans (except All-in Yield shall be the same as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) by more than 0.50% then outstanding Commitments the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B Loans made on the Closing Date and Loansthe Effective Date shall be increased such that after giving effect to such increase, as reasonably determined by the Borrower (except Term Yield Differential shall not exceed 0.50%; provided, that, to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then existing Lenders); outstanding,
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder, and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment and the incurrence or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Indebtedness thereunder and use of proceeds therefrom; Default under Section 7.01(b), (xc), (h) the conditions set forth in clauses or (ai) shall have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lend
Appears in 2 contracts
Sources: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established (except as set forth in Section 1.07) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative AgentAgent (which approval shall not be unreasonably withheld, conditioned or delayed)), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Commitments shall have the same terms as the then outstanding Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then latest Revolving Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Borrower, shall rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and subject to a Permitted Junior Intercreditor Agreement) or shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans Loans, other than any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap and Customary Bridge Financings, shall be no earlier than the then Latest Initial Term Loan Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Loan Maturity Date),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap and Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Facility,
(v) [Reserved,]
(vi) such Other Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis or solely to the same extent that any then outstanding existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans, on a greater than pro rata basis, than the then outstanding Term Loans in any mandatory prepayment;or voluntary prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Commitments, and
(except that any viii) Other Incremental Term Loans forming and Incremental Revolving Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.08(e), including to the extent practicable, to make an addition Incremental Loan fungible (including for tax purposes). Without limiting the foregoing, an Incremental Assumption Agreement may (i) extend or add “call protection” to an any existing Class tranche of Term Loans and (ii) amend the schedule of amortization payments relating to any existing tranche of Term Loans, including amendments to Section 2.10(a) (provided, that any such amendment shall not decrease any amortization payment to any Lender that would have otherwise been payable to such Lender prior to the same interest rateseffectiveness of the applicable Incremental Assumption Agreement), optional prepayment provisions in the case of each clause (i) and fees (other than upfront fees) as ii), so that such Incremental Term Loans and the applicable existing Term Loans form the same Class of Term Loans; provided, that such amendments are not adverse to the existing Term Loan Lenders (as determined in good faith by the Borrower);. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect to such (subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromthat is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Lenders, participating in such tranche of Incremental Term Loans or Incremental Revolving Commitment, as applicable, agree, the foregoing clause (ii) shall be limited to customary “specified representations,” and in the case of any Limited Condition Acquisition (bother than an acquisition to which the United Kingdom City Code on Takeovers and Mergers (or similar law or regulation) applies), those representations of Section 5.02 the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are satisfied whether or not a Credit Extension is made on such date (and, material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, Persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their sole discretion (discretion, all of the proceeds of which shall be used for working capital and general corporate purposes and for the payment of fees and expenses in connection with such Lenders, the “Incremental Term Loan Lenders”Commitments and/or Incremental Revolving Commitments; provided that each Incremental Revolving Lender providing a commitment to make revolving loans shall, to the extent the same would be required for an assignment under Section 9.04, be subject to the approval of the Administrative Agent, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,00025,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make the initial Incremental Term Loans hereunder or term loans with terms identical to (and which shallshall together with any then outstanding Incremental Term Loans, unless otherwise agreed by as applicable, form a single Class of) the Administrative Agentthen initial Incremental Term Loans (if any) or (y) commitments to make term loans with pricing, be not less than ten Business Days after maturity, amortization, participation in mandatory prepayments, prepayment premiums and penalties and/or other terms different from the date such notice is deliveredthen outstanding Incremental Term Loans (if any) (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Commitments; provided provided, that:
(i) the any (x) commitments to make additional Incremental Term Loans (as opposed to Other Incremental Term Loans) shall not be guaranteed by any Subsidiaries have the same terms as the then outstanding Incremental Term Loans, and shall form part of the Borrower that do not guarantee the existing same Class of Incremental Term Loans and (y) Incremental Revolving Commitments shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligationsoutstanding Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then latest maturity date) and shall require no scheduled amortization or mandatory commitment reduction prior to the latest maturity date applicable to the Commitments or Loans of any Class hereunder;
(ii) (A) the Maturity Date of any Incremental Term Loans (other than the Other Incremental Term Loans), unless agreed to by any such Other Incremental Term Loan Lenders, incurred pursuant to clause (a) of this Section 2.20 shall rank equally and ratably in right of security with the existing Loans;
(iii) the final maturity date of any such Incremental Term Loans (other than Other Incremental Term Loans) shall be no earlier than the latest maturity date applicable to the Commitments or Loans of any Class hereunder and in effect at the date of incurrence of such Incremental Term Loans (but may have amortization and customary prepayments prior to such date) and, except as to pricing, prepayment premiums and penalties, amortization, final maturity date and participation in mandatory prepayments (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the applicable Incremental Term Lenders in their sole discretion), shall have (x) substantially the same terms as the Revolving Loans (in the case of the initial Incremental Term Loans) or the initial Incremental Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that (i) if the interest rate margins in respect of any Incremental Term Loans incurred on or prior to the date that is twelve (12) months after the Effective Date (determined with reference to each pricing tier of any applicable pricing grid) exceeds the interest rate margins for any other Incremental Term Loans outstanding at such time (the “Existing Incremental Term Loans”) (as reasonably determined by the Administrative Agent) by more than 0.50%, then Latest Maturity Date the interest rate margins for the Existing Incremental Term Loans shall be increased (including by way of inclusion of a pricing grid) so that the interest rate margins in respect of such Existing Incremental Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.50% (determined at each level of each applicable pricing grid); provided further that in determining the interest rate margin(s) applicable to each Incremental Term Loan and the interest rate margin(s) for the Existing Incremental Term Loans, (1) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under such Incremental Term Loans or the Existing Incremental Term Loans in each case in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity, or, if the remaining life to maturity is less than four years, based on the actual Weighted Life to Maturity), (2) customary arrangement, underwriting, commitment or any similar fees payable to any arranger (or its affiliates) in connection with the Incremental Term Loans or to one or more arrangers (or their affiliates) of any Existing Incremental Term Loans shall be excluded and (B3) if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under the Existing Incremental Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Existing Incremental Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Existing Incremental Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Existing Incremental Term Loans shall be increased to the extent of such differential between interest rate floors;
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans with the longest remaining Weighted Average Life to Maturity,
(v) the Borrower shall be in compliance immediately prior to and after giving effect (including giving effect on a pro forma basis) to the incurrence of such Incremental Facility and the use of proceeds thereof with the financial covenants set forth in Section 6.10 (without giving effect to any then outstanding Class Acquisition Holiday) as of Term Loansthe last day of the fiscal quarter most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 5.01(a) or (b), the most recent financial statements referred to in Section 3.04), as applicable;
(iiivi) there shall be no Incremental Term borrower (other than the Borrower) or guarantor (other than the Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans Parties) in respect of any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any or Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans)Revolving Commitments;
(vvii) subject to any Unrestricted Subsidiary shall be an “unrestricted subsidiary” under the above, terms of any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Facility; and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 2 contracts
Sources: Credit Agreement (Myriad Genetics Inc), Credit Agreement (Myriad Genetics Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent may at any time and from time to timetime request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), request one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees(such Term Loans incurred in connection therewith, in each caseeach, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such an “Incremental Term Loan without its consent) and shall be subject to such consentsLoan” and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenderscollectively, the “Incremental Term Loan LendersLoans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”). Such notice shall set forth ) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a minimum amount new Tranche (i.e., not the same as any existing Tranche of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Loans, Incremental Term Loan Commitments are to be an increase in any existing Class of or other Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallLoans), unless otherwise agreed by the Administrative Agentrequirements of Section 2.15(c) are satisfied), which designation shall be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that:
(i) the , such Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the Borrower relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the then Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (Bb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Incremental then outstanding Term Loans shall with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans;
(iii) no , with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan shall participate on a greater than pro rata basis with denominated in Dollars, if the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding 20242025 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding 20242025 Term Loans shall be increased as of such date (except in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding 20242025 Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as expressly permitted above to the application of optional or voluntary prepayments among the Incremental Term Loans and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notexisting Term Loans, in each case, taken as a whole, that are not materially more restrictive favorable to the Borrower and its Restricted Subsidiaries, lenders providing such Incremental Term Loans than the terms provisions applicable to the then outstanding existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical either (x) to the Initial Revolving Loans and the Closing Date Revolving Commitments or (y) to the 2024 Revolving Loans and the 2024 Revolving Commitments, as elected by the Borrower, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans or 2024 Revolving Loans, as applicable (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans and the 2024 Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably determined satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Borrower Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (except xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(de) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent that this Agreement is amended such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to incorporate the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such more restrictive provisions for Incremental Lender, to be in conformity with the benefit requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then existing Lendersremain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(viiii) subject to Section 1.06, no on the date of the making of such new Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect Loans, and notwithstanding anything to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions contrary set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on 2.09, such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class applicable Tranche on a pro rata basis in accordance with (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective amount Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such Class held new Incremental Term Loans pursuant to Section 2.01(de)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by each Lenderany the Administrative Agent of Term SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent may at any time and from time to timetime request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), request one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees(such Term Loans incurred in connection therewith, in each caseeach, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such an “Incremental Term Loan without its consent) and shall be subject to such consentsLoan” and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenderscollectively, the “Incremental Term Loan LendersLoans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”). Such notice shall set forth ) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a minimum amount new Tranche (i.e., not the same as any existing Tranche of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Loans, Incremental Term Loan Commitments are to be an increase in any existing Class of or other Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallLoans), unless otherwise agreed by the Administrative Agentrequirements of Section 2.15(c) are satisfied), which designation shall be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that:
(i) the , such Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the Borrower relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the then Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (Bb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Incremental then outstanding Term Loans shall with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans;
(iii) no , with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan shall participate on a greater than pro rata basis with denominated in Dollars, if the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial2024 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial2024 Term Loans shall be increased as of such date (except in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial2024 Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as expressly permitted above to the application of optional or voluntary prepayments among the Incremental Term Loans and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notexisting Term Loans, in each case, taken as a whole, that are not materially more restrictive favorable to the Borrower and its Restricted Subsidiaries, lenders providing such Incremental Term Loans than the terms provisions applicable to the then outstanding existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical either (x) to the Initial Revolving Loans and the Closing Date Revolving Commitments or (y) to the 2024 Revolving Loans and the 2024 Revolving Commitments, as elected by the Borrower, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans or 2024 Revolving Loans, as applicable (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, or the 2024 Revolving Loans, as applicable, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans and the 2024 Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably determined satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Borrower Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (except xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(cd) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent that this Agreement is amended such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to incorporate the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such more restrictive provisions for Incremental Lender, to be in conformity with the benefit requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then existing Lendersremain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(viiii) subject to Section 1.06, no on the date of the making of such new Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect Loans, and notwithstanding anything to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions contrary set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on 2.09, such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class applicable Tranche on a pro rata basis in accordance with (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective amount Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such Class held new Incremental Term Loans pursuant to Section 2.01(bd)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by each Lenderany the Administrative Agent of Term SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request or any Subsidiary Loan Party (or Subsidiary that will substantially concurrently become a Subsidiary Loan Party) may obtain Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the The amount of the Incremental Term Loan Commitments being requested (which and/or Incremental Revolving Facility Commitments shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent). Such Incremental Commitments may, at the election of the Borrower, be (iix) whether commitments to increase the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in principal amount of any existing Class of Term Loans or a new Term Facility Commitments by making term loans with terms identical to such outstanding Class of Term Loans and or Term Facility Commitments or to increase the principal amount of any existing Class of Revolving Facility Commitments (iiiprovided that an increase to the Thai Baht Revolving Facility will require prior written consent from the Thai Baht Revolving Lenders) the date on which by providing revolving credit commitments with terms identical to such Incremental outstanding Class of Revolving Facility Commitments or (y) commitments to make a new tranche of Term Loan Commitments are requested Loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from any outstanding Class of Term Loans or commitments to become effective (which shallmake a new tranche of revolving credit commitments with pricing, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)maturity and/or other terms different from any outstanding Class of Revolving Facility Commitments.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
(i) any commitments to increase the Incremental principal amount of an existing Class of Term Loans and/or make additional Revolving Facility Loans of any Class shall not be guaranteed by any Subsidiaries of have the Borrower that do not guarantee same terms as such Term Loans or the existing Loans Revolving Facility Loans, respectively, and shall be secured documented as an increase to such Class of existing Term Loans and/or Revolving Facility Commitments, as applicable, hereunder (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on a pari passu basis by the same Collateral (and no applicable Revolving Facility being increased for all lenders under such Revolving Facility without the need for consent from any existing Lender, but additional collateral) securing upfront or other fees may be payable to the then lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Obligations;Revolving Facility Lenders),
(ii) any Incremental Loans shall rank pari passu in right of payment and security with the Initial Term B Loans and the Initial Revolving Facility Loans,
(Aiii) the Maturity Date final maturity date of any such Incremental Term Loans (except for (i) Customary Bridge Loans and (ii) the Inside Maturity Basket) shall be no earlier than the then Latest Initial Term B Facility Maturity Date and Date,
(Biv) the Weighted Average Life to Maturity of any such Incremental Term Loans (except for (i) Customary Bridge Loans and (ii) the Inside Maturity Basket) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B Loans,
(v) any then outstanding Incremental Term Loans may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of any then-existing Class of Term Loans;
Loans and (iiiii) no Incremental Term Loan shall participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis with respect to the then outstanding Initial Term Loans B Loans, other than in the case of a refinancing thereof) in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that prepayments of any Incremental Term Loans forming an addition to an then-existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees Loan,
(vi) (A) other than upfront feesas set forth in clauses (ii), (iii), (iv), (vii) as or (viii) of this clause (b), all other terms of any Incremental Term Loan, if not consistent with the applicable terms of any then-existing Class of Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Loans and (B) the terms of any Incremental Revolving Facility established as a separate Class will provide for final maturity no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Facility Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially consistent with the Initial Revolving Facility Loans (as determined by the Borrower in good faith);, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence of such Incremental Revolving Facility or the obtaining of any commitment with respect thereto or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the Initial Revolving Facility Maturity Date),
(vvii) subject the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing lenders thereunder; provided that with respect to any U.S. Dollar denominated broadly-syndicated floating rate Incremental Term Loan incurred prior to the date which is twelve months following the Closing Date that is originally incurred in reliance on clause (ii) of the definition of “Incremental Amount” (but not on account of any reclassification provided for in the proviso contained in such definition) and ranks pari passu in right of security with the Initial Term B Loans, the Applicable Margin shall not exceed the Applicable Margin in respect of the Initial Term B Loans on the 2025-2 Refinancing Amendment Effective Date by more than 0.50% per annum (the “Term Margin Differential”), or if it does so exceed such Applicable Margin by more than the Term Margin Differential, then the Applicable Margin applicable to such Initial Term B Loans shall be increased by an amount equal to the positive difference (if any) between the Applicable Margin with respect to such Incremental Term Loan; provided that, Loan and the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms corresponding Applicable Margin applicable to the then outstanding Commitments Initial Term B Loans minus the Term Margin Differential (this proviso, the “MFN Provision”); provided, further, that the MFN Provision shall not apply to (A) any Incremental Term Facility having an aggregate principal amount not exceeding the greater of (x) $200,000,000 and Loans(y) 0.50 times EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period, as reasonably determined by (B) any Incremental Term Facility scheduled to mature on or after the Borrower date that is one year after the Initial Term B Facility Maturity Date, (except C) any Incremental Term Facility incurred in connection with a Permitted Business Acquisition or other permitted Investment hereunder, (D) customary term “A” loans and (E) customary bridge loans with a maturity date not longer than one year that are convertible or exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Initial Term B Loans in right of payment and with respect to security and that would otherwise be subject to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)MFN Provision; and
(viviii) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party or the Thai Borrower (with respect to Section 1.06the Thai Baht Revolving Facility Commitments).
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) subject to Section 1.07 and only to the extent required by the Lenders providing such Incremental Facility, no Default or Specified Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the relevant Incremental Assumption Agreement consistent with those delivered pursuant Section 4.02 and such additional customary documents and filings (to the extent required to be delivered on the Closing Date pursuant to Section 4.02 and Section 5.10) as the Administrative Agent may reasonably request, subject to ensure Section 5.10(d), to assure that the Borrowings Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans; provided that, solely to the extent required by the applicable lenders providing such Incremental Facility in the applicable Incremental Assumption Agreement, and subject to Section 1.04(a) (i) the representations and warranties contained in Article III hereof shall be true and correct in all material respects on and as of the date of the incurrence of any Incremental Term Loan Commitment or Incremental Revolving Facility Commitment (provided that any representations and warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects as of such Class respective date or for the respective period, as the case may be), subject to customary “SunGard” limitations to the extent the proceeds of any Incremental Facility are held being used to finance a Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement and (ii) on the Lenders date of effectiveness of the Incremental Assumption Agreement, no Specified Event of Default shall have occurred and be continuing.
(d) Notwithstanding anything to the contrary herein, (i) the initial Interest Period with respect to any Term SOFR Borrowing or Eurocurrency Borrowing of Incremental Loans may, at Holdings’ option, be of a duration that commences on the date of borrowing thereof and ends on the last day of the Interest Period applicable to any other outstanding Term SOFR Borrowing or Eurocurrency Borrowing, in which case the Adjusted Term SOFR or Adjusted EURIBOR with respect to such initial Interest Period shall be the same as the Adjusted Term SOFR or Adjusted EURIBOR applicable to such other outstanding Term SOFR Borrowing or Eurocurrency Borrowing, as the Borrower may direct and (ii) for the purpose of determining the number of outstanding Term SOFR Borrowings or Eurocurrency Borrowings upon the incurrence of any Incremental Loans, any Term SOFR Borrowings or Eurocurrency Borrowings in respect of which the Borrower has made the election described in the preceding clause (i) shall be considered a single Term SOFR Borrowing or Eurocurrency Borrowing, as applicable.
(e) Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide any Incremental Term Loans, Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, pursuant to this Section 2.21 and any election to do so shall be in the sole discretion of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 2 contracts
Sources: Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.), Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent may at any time and from time to timetime request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), request one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees(such Term Loans incurred in connection therewith, in each caseeach, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such an “Incremental Term Loan without its consent) and shall be subject to such consentsLoan” and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenderscollectively, the “Incremental Term Loan LendersLoans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”). Such notice shall set forth ) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a minimum amount new Tranche (i.e., not the same as any existing Tranche of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Loans, Incremental Term Loan Commitments are to be an increase in any existing Class of or other Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallLoans), unless otherwise agreed by the Administrative Agentrequirements of Section 2.15(c) are satisfied), which designation shall be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that:
(i) the , such Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the Borrower relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the then Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (Bb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Incremental then outstanding Term Loans shall with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans;
(iii) no , with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan shall participate on a greater than pro rata basis with denominated in Dollars, if the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (except in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as expressly permitted above to the application of optional or voluntary prepayments among the Incremental Term Loans and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notexisting Term Loans, in each case, taken as a whole, that are not materially more restrictive favorable to the Borrower and its Restricted Subsidiaries, lenders providing such Incremental Term Loans than the terms provisions applicable to the then outstanding Commitments existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably determined satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Borrower Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (except xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent that this Agreement is amended such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to incorporate the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such more restrictive provisions for Incremental Lender, to be in conformity with the benefit requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then existing Lendersremain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(viiii) subject to Section 1.06, no on the date of the making of such new Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect Loans, and notwithstanding anything to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions contrary set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on 2.09, such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class applicable Tranche on a pro rata basis in accordance with (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective amount Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such Class held new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by each Lenderany the Administrative Agent of Term SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (1a) The Borrower or any Co-Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower or such Co-Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2024 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the 2024 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent each applicable Co-Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans and/or 2024 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing ObligationsTerm B-1 Loans or 2024 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2024 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2024 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2024 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2024 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2024 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) ha
Appears in 2 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (1) 3. The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2a) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, financial maintenance covenants, participation in mandatory prepayments, commitment reductions, borrowing mechanics, assignments, participations and other provisions customarily found in revolving credit facilities (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding Commitments outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and Loans, as reasonably determined by (y) any Borrowing at the Borrower time such Borrowing is made and (except to B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(b) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 of any the Original First Lien Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(c) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(e) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) neces
Appears in 2 contracts
Sources: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (Bx) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Class the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iiiviii) with respect to any commitments to make Other Revolving Loans that rank pari passu in right of security with the Initial Revolving Loans, the All-in Yield of such Other Revolving Loans shall be the same as that applicable to the Initial Revolving Loans on the Closing Date, except that the All-in Yield in respect of any such Other Revolving Loan may exceed the All-in Yield in respect of such Initial Revolving Loans on the Closing Date by no Incremental Term Loan more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Revolving Yield Differential”) then the Applicable Margin applicable to such Initial Revolving Loans shall be increased such that after giving effect to such increase, the Revolving Yield Differential shall not exceed 0.50%;
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis with or a less than pro rata basis (but not a greater than pro rata basis) than the then outstanding Term B Loans in any mandatory prepayment;prepayment hereunder; and
(ivx) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the Borrower (except that effectiveness of any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest ratesAssumption Agreement, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (ab) and (bc) of Section 5.02 are 4.01 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (and, only to the extent and executed by a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence Responsible Officer of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the
Appears in 2 contracts
Sources: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)
Incremental Commitments. (1a) The U.S. Borrower or the Dutch Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their sole discretion own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (such Lenders, the “Incremental Term Loan Lenders”which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $1.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) (a) whether such Incremental Term Loan Commitments are to be Tranche C-1 Term Loan Commitments, unless otherwise agreed by Tranche C-2 Term Loan Commitments, Tranche C-4 Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Administrative AgentTranche C-1 Term Loans, the Tranche C-2 Term Loans and the Tranche C-4 Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be not less than ten Business Days after Canadian Tranche Commitments, European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the date such notice is deliveredCanadian Tranche Revolving Facility Loans, European Tranche Revolving Facility Loans and U.S. Tranche Revolving Facility Loans (“Other Revolving Facility Loans”).
(2b) The Loan Parties, the Administrative Agent U.S. Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Loans to be made thereunder; provided that:
that (i) the Incremental Other Term Loans and Other Revolving Facility Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee the existing Tranche C-1 Term Loans, Tranche C-2 Term Loans, Tranche C-4 Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;
Tranche C-1 Term Loans, Tranche C-2 Term Loans or Tranche C-4 Term Loans, as applicable, (ii) the final maturity date of (Aa) the Maturity Date of any Incremental Other Term Loans shall be no earlier than the then Latest Term Loan Maturity Date and/or (b) any Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date; provided that any Other Term Loans and any Other Revolving Facility Loans may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes that mature within 91 days after such Early Maturity Test Date exceeds $200.0 million, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
and (iv) Incremental the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Maturity Date; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall have be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such interest ratesOther Term Loan and/or Other Revolving Facility Loan) may exceed the Applicable Margin for the Term Loans and/or the Revolving Facility Loans (which shall, optional prepayment provisions and for such purposes only, be deemed to include all upfront or similar fees as may be agreed between the or original issue discount payable to all Lenders providing the applicable Term Loans and/or the Revolving Facility Loans), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin for the Term Loans or the Revolving Facility Loans, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility 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 amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the U.S. Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 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 U.S. Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 4.02 of the 2005 Credit Agreement and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Event of Default shall exist Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the U.S. Borrower would be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans and/or Incremental Revolving Facility Loans (other than Other Term Loans or Other Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Facility Loans under the same Tranche on a pro rata basis, and the Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans or Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Revolving Facility Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Revolving Facility Loans in their sole discretion own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and each L/C Issuer (neither of which approvals shall be unreasonably withheld) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Facility Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by the Administrative Agentand (iii) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans up to an aggregate principal amount of $10,000,000 under a “first-in, be not less than ten Business Days after the date such notice is deliveredlast-out” tranche on customary terms (referred to herein as “FILO Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentRevolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansRevolving Facility Commitments; provided that:
that (i) all Incremental Facility Loans that are additional Revolving Facility Loans shall have the Incremental Term same terms as the Revolving Facility Loans, (ii) the FILO Revolving Loans shall rank junior in right of payment but pari passu in right of security with the Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that the interest rate margins then in effect for outstanding Revolving Facility Loans shall not be guaranteed by any Subsidiaries of increased to equal the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral interest rate margins for FILO Revolving Loans, (and no additional collateral) securing the then existing Obligations;
(ii) (Aiii) the Maturity Date final maturity date of any Incremental Term FILO Revolving Loans shall be no earlier than the then Latest Revolving Facility Maturity Date Date, and (Biv) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Term FILO Revolving Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Term Loans;
(iii) no the Incremental Term Loan shall participate on a greater than pro rata basis Revolving Facility Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the then outstanding Term Loans in Company’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees other Loan Document as may be agreed between necessary or appropriate, in the Lenders providing opinion of the applicable Incremental Term Loan Commitments and Administrative Agent, to effect the Borrower (except that provisions of this Section 2.15, including the establishment of any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates“FILO Revolving Loan” commitments as a “first-in, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);last-out” tranche on customary terms.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.15 unless (wi) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 5.01 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans, (iii) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (biv) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, before and after giving effect to such any Incremental Term Loans and the incurrence of Indebtedness thereunder Revolving Facility Commitment (assuming that such commitments are fully drawn on such date) and use of proceeds therefromincluding any FILO Revolving Loan), the Borrower would be in compliance with Section 8.11 and aggregate par principal amount of Revolving Facility Commitments directly held by all Affiliated Lenders shall not, collectively, exceed 10.0% of the aggregate par principal amount of all Revolving Facility Commitments (zincluding any FILO Revolving Loans).
(d) Each of the parties hereto hereby agrees that the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Facility Loans (other than FILO Revolving Loans) in the form of additional Revolving Facility Loans, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time such Incremental Commitments are committed to) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu in right of security with the Term B Loans,
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially the same terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan; provided thatLoan incurred pursuant to clause (a) of this Section 2.21, the terms applicable to any such Incremental Term Loans (except All-in Yield shall be the same as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) by more than 0.50% then outstanding Commitments and Loansthe Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, as reasonably determined by the Borrower (except Term Yield Differential shall not exceed 0.50%; provided, that, to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then existing Lenders); outstanding,
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder, and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment and the incurrence or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Indebtedness thereunder and use of proceeds therefrom; Default under Section 7.01(b), (xc), (h) the conditions set forth in clauses or (ai) shall have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated
Appears in 2 contracts
Sources: First Lien Credit Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request an increase in the aggregate amount of the Commitments (each such increase, an “Incremental Term Loan Commitments Commitment”), as applicable, in an aggregate amount not to exceed $100,000,000 50,000,000, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)all of which must be permitted to become assignees of Commitments or Loans under Section 9.04. Such notice 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 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agent), remaining unused amount) and (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)effective.
(2b) The Loan PartiesBorrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld), additional banks, financial institutions and any other Person whose consent is institutional lenders who will become Incremental Lenders in connection therewith, in each case, solely to the extent such consent, if any, would be required under Section 9.04 for an assignment of Loans or Commitments, as provided above applicable, to additional banks, financial institutions and other institutional lenders. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Person. The terms and provisions of the Incremental Commitments shall be identical to those of the Commitments. The Incremental Commitments shall rank pari passu in right of payment and security with the Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each Additional Credit Extension Amendment pursuant of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to this clause the extent (dbut only to the extent) shall specify necessary to reflect the existence and terms of the applicable Incremental Term Loans; provided that:
(i) Commitments evidenced thereby, and the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments Administrative Agent and the Borrower (except that any Incremental Term Loans forming an addition may revise this Agreement to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);evidence such amendments.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.18 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are satisfied whether or not 4.02 shall be satisfied, a Credit Extension is made on certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (andii) except as otherwise specified in the applicable Incremental Assumption Agreement, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions as to such matters as are other closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the Closing Date under Section 4.01 and (iii) all fees and expenses owing in respect of any existing Class of Term Loans, such Incremental Commitment to the Administrative Agent and the Lenders shall take have been paid in full.
(d) On the date of effectiveness of any action as may Incremental Commitments, the Borrower shall (A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be reasonably required effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders, the Incremental Lenders and the existing Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent to ensure that Agent, so that, after giving effect thereto, the Borrowings of such Class Loans are held ratably by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans Commitments of such Class held by each LenderLenders (after giving effect to such Incremental Commitments) and (C) pay to the Lenders the amounts, if any, payable under Section 2.13 as a result of any such prepayment.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments not to exceed $100,000,000 and/or additional Revolving Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (in the sole discretion of such Lenders) or Eligible AssigneesAssignees who will become Lenders, in an aggregate principal amount of up to $20,000,000; provided that (i) Incremental Commitments will first be offered to the then-existing Lenders on a pro rata basis in accordance with each case, that is a Farm Credit Lender (which, in each case, may include any such Lender's holdings of the then existing Lender Term Loans and Revolving Commitments (but no existing Lender will have any obligation to establish any Incremental Commitment) and, to the extent such Lender shall be required existing Lenders have not agreed or have declined to participate in any provide such Incremental Term Loan without its consentLoans within five (5) Business Days following such offer on the terms specified by the Borrower or arranger of such Incremental Loans, after being provided a bona fide opportunity to do so, the Borrower may then offer such opportunity (on the same terms) to other Persons; (ii) at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), no Default shall have occurred and be continuing or would result therefrom; and (iii) each such Person, if not already a Lender hereunder, shall be subject to such consentsthe approval of the Administrative Agent and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lendersany additional Revolving Commitment, the “Incremental Term Loan Lenders”L/C Issuer (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 1,000,000) and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shallshall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent, ). All Incremental Term Loans shall be not less than ten Business Days after the date such notice is delivered)made in Dollars.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or additional Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Lender. Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) Commitments shall specify the terms of the applicable Incremental Term Loans; provided Loans to be made thereunder. 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 Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the - 57 - Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the Revolving Loans and any other Class of Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing ObligationsLoans;
(ii) (A) in the case of Incremental Term Loans, shall not mature earlier than the later of the Revolving Maturity Date, and, if applicable, the Latest Maturity Date of any Incremental Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, except to the extent resulting from customary (as determined by the Administrative Agent and the Borrower, each acting reasonably) amortization for a "term loan A" of the kind generally held by commercial banks, shall be no earlier than the then Latest Maturity Date and (B) the have a Weighted Average Life to Maturity of any Incremental Term Loans shall be no not shorter than the later of (a) the remaining time until the Revolving Maturity Date and (b), if applicable, the remaining Weighted Average Life to Maturity of any then outstanding Class of then existing Incremental Term Loans;
(iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans above, shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be amortization determined by the Borrower and the Lenders providing such applicable Incremental Term Loan; provided that, Lenders;
(v) in the terms applicable to any such case of Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(except to vi) in the extent that this Agreement is amended (which shall not require case of Incremental Term Loans, may have customary mandatory prepayments in respect of excess cash flow and the consent net proceeds of any Lender) to incorporate such more restrictive provisions for issuances of Indebtedness, Dispositions and casualty and condemnation events, as specified in the benefit of the then existing Lenders)applicable Incremental Assumption Agreement; and
(vivii) subject all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to Section 1.06, no the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Term Loan Commitment Commitments or additional Revolving Commitments shall become effective under this Section 2.01(b) unless 2.11 unless, on the date of such effectiveness, (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xi) the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are 4.2 shall be satisfied whether or not as if it was a Credit Extension is made on borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date (and, only to and executed by a Financial Officer of the extent a Borrowing is made on such date, clause (c) is required to be complied with)Borrower; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents (with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, opinions of counsel and legal opinions as to such matters as are reasonably other customary documentation requested by the Administrative Agent.
(e) In connection with any such additional Revolving Commitments, each existing Revolving Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the existing Revolving Commitments, multiplied by (ii) the amount of such Incremental Commitment. Upon In connection with any increase such Incremental Term Loan Commitments, each existing Term Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the other terms and conditions of any existing Class this Section 2.11, to provide a portion of such Incremental Term Loan Commitments in an amount equal to (i) a fraction, the numerator of which is the Outstanding Amount of such Term Lender’s Term Loans, and the Lenders shall denominator of which it the Outstanding Amount of all Term Loans of all Term Lenders, multiplied by (ii) the amount of such Incremental Commitment.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that that, following the Borrowings establishment of such Class any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Class on the date of each additional Revolving Commitment, or by allocating a portion of each Incremental Term Loan to each outstanding SOFR Term Borrowing of the same Class on a pro rata basis basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in accordance the Borrowing of which they are a part (and notwithstanding any other provision of this Credit Agreement that would prohibit such an initial Interest Period), or requiring a prepayment and reborrowing of Revolving Loans. Any conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Administrative Agent shall consult with the respective amount of Term Loans of such Class held by each LenderBorrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Ooma Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (Lender, but no such existing Lender shall be required will have an obligation to participate in make any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonCommitments and/or Incremental Revolving Facility Commitments) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Commitments either, at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrower under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to any Term Loans then in effect or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from any Term Loans then in effect and (iv) in the date case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans, with such modifications as are customary for term loans (including, without limitation, mandatory prepayments as set forth in Section 2.11 hereof as such mandatory prepayments may be modified by the Borrower and the lenders providing such additional Term Facility (including to establish “step-downs” in the definitions of “Net Proceeds” and “Required Percentage”), “most favored nation” pricing provisions and call protection provisions) (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Incremental Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(ii) the Incremental Term Loans shall not be guaranteed by any Subsidiaries rank pari passu or, at the option of the Borrower Borrower, junior in right of security with the Initial Revolving Loans, or be unsecured (provided, that do not guarantee if such Incremental Term Loans rank junior in right of security with the existing Initial Revolving Loans, such Incremental Term Loans and shall be secured on subject to a pari passu basis by Permitted Junior Intercreditor Agreement and, for the same Collateral (and no additional collateral) securing avoidance of doubt, Incremental Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the then existing Obligations;Initial Revolving Loans),
(ii) (Aiii) the Maturity Date final maturity date of any Incremental Term Loans shall be no earlier than the then Latest Initial Revolving Facility Maturity Date in effect on the date of incurrence of such Incremental Term Loans (provided that this clause (iii) shall not apply to (1) Incremental Term Loans in an aggregate principal amount not in excess of the Inside Maturity Amount available on the date of incurrence of such Incremental Term Loans and (B2) bridge facilities allowing extensions on customary terms to a date that is no earlier than the Initial Revolving Facility Maturity Date in effect on the date of incurrence of such Incremental Term Loans),
(iv) solely with respect to Incremental Term Loans with amortization in excess of 5.0% per annum, the Weighted Average Life to Maturity of any such Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class the Initial Revolving Facility in effect on the date of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class incurrence of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (without giving effect to any amortization or prepayments on the Incremental Term Loans) (provided that this clause (iv) shall not apply to (1) Incremental Term Loans in an aggregate principal amount not in excess of the Inside Maturity Amount available on the date of incurrence of such Incremental Term Loans and (2) bridge facilities allowing extensions on customary terms to a date that is no earlier than the Initial Revolving Facility Maturity Date in effect on the date of incurrence),
(v) except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest latest Revolving Facility Maturity DateDate existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Initial Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as reasonably determined in good faith by the Borrower Borrower) or (except z) such other terms as shall be reasonably satisfactory to the extent Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that this if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement is amended and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(which vii) (A) the final maturity date of any Other Revolving Loans shall be no earlier than the Initial Revolving Facility Maturity Date and (B) any Other Revolving Loans shall not require have any scheduled amortization or mandatory commitment reduction prior to the consent Initial Revolving Facility Maturity Date,
(viii) [reserved],
(ix) there shall be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) with other Term Loans in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) with other Revolving Facility Commitments in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) no Default or Event of Default shall exist giving pro forma effect to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Incremental Term Loans having terms different from any Term Loans then in effect), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (which may include any existing Lender, but no existing Lender will have an obligation to make any Extension) (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date, participation in prepayments and commitment reductions and covenants and other provisions applicable only to periods after the Initial Revolving Facility Maturity Date existing at the time of incurrence of such Extended Term Loan (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Initial Term Loan Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Initial Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization and/or maturity and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”);
(b) The Administrative AgentAgent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, be not less than ten Business Days after the date such notice is delivered)Borrower may also invite additional Eligible Assignees to become Lenders pursuant to an Incremental Assumption Agreement.
(2c) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii), (iii), (vi), (vii) and (ix) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) substantially similar terms as the Borrower that do not guarantee the existing Initial Term Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(ii) (A▇▇) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Initial Term Loan Facility Maturity Date and Date,
(Biii) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Initial Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;,
(iv) Incremental Term Loans shall have such interest ratesexcept as to pricing, optional prepayment provisions amortization, commitment reduction, final maturity date, participation in mandatory prepayments and fees ranking as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower to security (except that any Incremental Term Loans forming an addition which shall, subject to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
clause (v), (vi), (viii) subject to the aboveand (ix) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing such Incremental Term Loan; provided thatin their sole discretion), the terms applicable to any such Incremental Term Other Revolving Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; have (x) substantially similar terms as the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether Revolving Facility or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect such other terms as shall be reasonably satisfactory to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase ,
(v) the final maturity date of any existing Class of Term LoansOther Revolving Loans shall be no earlier than, and shall require no scheduled amortization or mandatory commitment reductions prior to, the Lenders shall take any action as may be reasonably required by Revolving Facility Maturity Date with respect to the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.Initial Revolving Loans;
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Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term B-1 Loans or Term B-2 Loans, unless otherwise agreed by as applicable, form a single Class of) Initial Term B-1 Loans or Term B-2 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredInitial Term B-1 Loans and Term B-2 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x)(A) commitments to make additional Initial Term B-1 Loans shall have the same terms as the Initial Term B-1 Loans, and shall form part of the same Class of Initial Term BTerm B-1 Loans and (B) commitments to make additional Term B-2 Loans shall have the same terms as the Term B-2 Loans, and shall form part of the same Class of Term B-2 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term B-1 Loans and Term B-2 Loans or, at the option of the Borrower, shall rank junior in right of security with the Initial Term B-1 Loans and Term B-2 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term B-1 Loans and/or Term B-2 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term B-1 Loans and Term B-2 Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Initial Term B-1 Loans or Term B-2 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Initial Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Initial Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term B-1 Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis basis) than the Initial Term A Loans, the Term B-1 Loans and, other than with respect to any mandatory prepayment pursuant to Section 2.11(c), the then outstanding Term B-2 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as then Collateral. Each party hereto hereby agrees that, upon the applicable existing Class effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Sources: Credit Agreement (Dollar Tree Inc)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice 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 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective and (which shalliii) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) [reserved],
(vi) [reserved],
(vii) with respect to any Other Term Loan incurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then outstanding Class the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iiiviii) no Incremental such Other Term Loan shall Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis with basis) than the then outstanding Term B Loans in any mandatory prepayment;prepayment hereunder; and
(ivix) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable no obligor in respect of any Incremental Term Loan Commitments and that is not a Loan Party. Each party hereto hereby agrees that, upon the Borrower (except that effectiveness of any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest ratesAssumption Agreement, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, at time of and immediately after such Borrowing, as applicable, no Default or Event of Default or Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing and the incurrence Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) Borrower and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of any then-existing Class of Term Loans, .
(d) Each of the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans, on a pro rata basis (based, in accordance the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the respective amount maturity date of such Lender’s Loans of such Class and to otherwise modify the terms of such Lender’s Loans of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class held are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), and (v) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including, without limitation, this Section 2.21), (i) the aggregate amount of Extended Term Loans will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan implemented thereby, (v) all Extended Term Loans and all obligations in respect thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations relating to an existing Class of Term Loans of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) there shall be no obligor in respect of any such Extended Term Loans that is not a Loan Party.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that:
(i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date, each of the conditions set forth in Section 4.01(a) shall be satisfied (with references therein to “Closing Date” being deemed references to the applicable “Refinancing Effective Date”) and no Event of Default or Default shall have occurred and be continuing to the extent required by the relevant Incremental Assumption Agreement governing such Refinancing Term Loans;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)) and optional prepayment or mandatory prepayment or redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable
Appears in 1 contract
Sources: Second Lien Credit Agreement (Hostess Brands, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent may at any time and from time to timetime request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), request one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees(such Term Loans incurred in connection therewith, in each caseeach, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such an “Incremental Term Loan without its consent) and shall be subject to such consentsLoan” and, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenderscollectively, the “Incremental Term Loan LendersLoans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”). Such notice shall set forth ) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being requested provided thereunder (which Tranche shall be in a minimum amount new Tranche (i.e., not the same as any existing Tranche of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Loans, Incremental Term Loan Commitments are to be an increase in any existing Class of or other Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallLoans), unless otherwise agreed by the Administrative Agentrequirements of Section 2.15(c) are satisfied), which designation shall be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans; provided that:
(i) the , such Incremental Term Loans shall not be guaranteed by any Subsidiaries have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the Borrower relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the then Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (Bb) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of any Incremental then outstanding Term Loans shall with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans;
(iii) no , with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan shall participate on a greater than pro rata basis with denominated in Dollars, if the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding 2025 Tranche B-2 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding 2025 Tranche B-2 Term Loans shall be increased as of such date (except in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding 2025 Tranche B-2 Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as expressly permitted above to the application of optional or voluntary prepayments among the Incremental Term Loans and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notexisting Term Loans, in each case, taken as a whole, that are not materially more restrictive favorable to the Borrower and its Restricted Subsidiaries, lenders providing such Incremental Term Loans than the terms provisions applicable to the then outstanding existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical either (x) to the Initial Revolving Loans and the Closing Date Revolving Commitments or (y) to the 2024 Revolving Loans and the 2024 Revolving Commitments, as elected by the Borrower, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans or 2024 Revolving Loans, as applicable (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans and the 2024 Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably determined satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Borrower Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (except xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(ef ) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent that this Agreement is amended such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to incorporate the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such more restrictive provisions for Incremental Lender, to be in conformity with the benefit requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then existing Lendersremain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(viiii) subject to Section 1.06, no on the date of the making of such new Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect Loans, and notwithstanding anything to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions contrary set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on 2.09, such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class applicable Tranche on a pro rata basis in accordance with (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective amount Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such Class held new Incremental Term Loans pursuant to Section 2.01(ef)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by each Lenderany the Administrative Agent of Term SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to the date such notice is deliveredIncremental Term Loan Commitments initially incurred under this Agreement or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Incremental Term Loan Commitments initially incurred under this Agreement (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental Term any commitments to make additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Initial Revolving Loans,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) in right of security with the Initial Revolving Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Initial Revolving Loans, such Other Term Loans shall be subject to a subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured,
(iii) the final maturity date of any such Other Term Loans (except for any bridge loan that has no amortization payments and the terms of which provide for an automatic (subject to customary conditions) extension of the maturity date to a date that is not earlier than the Revolving Facility Maturity Date of any Incremental Term Loans then in effect, shall be no earlier than the then Latest Revolving Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rateswhich shall, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such applicable Incremental Term Loan; provided thatLenders in their sole discretion), the terms applicable to any such Incremental Other Term Loans shall have terms that are current market terms for such type of Indebtedness (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lendersin good faith); and,
(viiv) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless [reserved]
(w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xv) the conditions set forth in clauses Other Revolving Loans incurred pursuant to clause (a) and (b) of this Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and2.21 shall rank pari passu or, only to at the extent a Borrowing is made on such dateoption of the Borrower, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence junior in right of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance security with the respective amount of Term Initial Revolving Loans of or unsecured (provided, that if such Class held by each Lender.Other Revolving Loans rank junior
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders (which, in each case, which may include any existing Lender (but Lender; provided that no such existing Lender shall be required obligated to participate in provide any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLoans unless it so agrees) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 50,000,000 or, if less, the remaining Incremental Amount, and minimum increments in integral multiples of $10,000,000, or remaining permitted amount or, 10,000,000 in each case, such lesser amount approved by the Administrative Agentexcess thereof), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term B Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that:
that (i) the Incremental Other Term Loans shall not be rank pari passu in right of payment and of security with (including being guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans same Guarantors and shall be being secured on a pari passu basis by the same Collateral as) the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Borrower and no additional collateralthe Administrative Agent; provided that the interest rates and amortization schedule shall (subject to the following criteria) securing be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then existing Obligations;
in effect for outstanding Term Loans (ii) which shall be calculated to be the sum of (A) the Maturity Date Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to such Eurodollar Rate Loans on such date would exceed the Eurodollar Base Rate that would be in effect for a three-month Interest Period commencing on such date plus (B) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (ii) the final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (Biii) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (except that i) above, the initial yield on any Incremental Term Loans forming an addition to an existing Class of Term Loans Loan Commitment shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and Administrative Agent to be equal to the Lenders providing such sum of (x) the interest rate margin above the Eurodollar Rate for loans under the Incremental Term Loan; provided that, Loan Commitment that bear interest based on the terms Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to any such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Eurodollar Rate that would be in effect for a three month Interest Period commencing on such date) and (except as expressly permitted above and except y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for covenants doing so (the amount of such discount or other provisions applicable only to periods after the then Latest Maturity Date) are notfee, taken expressed as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit percentage of the then existing LendersIncremental Term Loan Commitment, being referred to herein as “OID”); and, the amount of such OID divided by four).
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.12 unless (wi) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Borrowing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) no Default or Event of Default shall exist have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 as of the last day of the Fiscal Quarter most recently ended immediately prior to and after giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (xIncremental Term Loans) the conditions set forth in clauses (a) is equal to or less than 3.00 to 1.00 and (bv) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only there shall have been paid to the extent a Borrowing is made on such dateAdministrative Agent, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and for the incurrence account of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions the Lenders (including any Person becoming a Lender as to part of such matters Incremental Assumption Agreement on the related Increased Amount Date), as applicable, all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are reasonably requested by due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro rata basis. Section 3.05 shall not apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Term Loan Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall have, as applicable, an Incremental Term Loan Commitment which shall become “Commitments” hereunder and (iii) shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Class are held by Incremental Term Loan Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderother Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 10.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or junior ranking as to security and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Loans and Term B Loans, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, (x) such other Term Loans shall be established as a separate facility from the Term B Facility, (y) such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (z), for the avoidance of doubt, shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term B Loans,
(v) [reserved],
(vi) [reserved],
(vii) [reserved],
(viii) with respect to any Other Term Loan that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Class the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans;, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding, and
(iiiix) no Incremental the Other Term Loan shall Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis with basis) than the then outstanding Term B Loans in any mandatory prepayment;
prepayment hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (ivbut only to the extent) Incremental Term Loans shall have such interest rates, optional prepayment provisions necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Borrower Administrative Agent with the Borrower’s consent (except that any Incremental Term Loans forming an addition not to an existing Class of Term Loans shall have be unreasonably withheld) and furnished to the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such have occurred and be continuing or would result therefrom or (ii) in the case of an Incremental Term Loan Commitment and or Incremental Revolving Facility Commitment incurred in connection with a Permitted Business Acquisition or another Investment permitted hereunder, on the incurrence date of Indebtedness thereunder and use such effectiveness, no Event of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Default under Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and7.01(b), only to the extent a Borrowing is made on such date, clause (c), (h) is required to or (i) shall have occurred and be complied with); continuing or would result therefrom.
(yd) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each L/C Issuer, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing 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 (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that: (i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01 shall be satisfied to the extent required by the relevant Incremental Assumptio
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Sources: First Lien Credit Agreement (Caesars Acquisition Co)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to 2021 Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is delivered2021 Term Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
: (i) any commitments to make additional 2021 Term Loans, additional Initial Revolving Loans and/or additional 2025 Extended Revolving Loans shall have the Incremental same terms as the 2021 Term Loans, Initial Revolving Loans or 2025 Extended Revolving Loans, respectively, (ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term Loans and Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) in right of security with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be subject to a 111 subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured, (iii) the final maturity date of any such Other Term Loans (except for (x) customary bridge loans, (y) Customary Term A Loans or (z) Other Term Loans in an aggregate amount not to exceed the Inside Maturity Exception Amount (clauses (x), (y) and (z), collectively, the “Inside Maturity Debt”)) shall be guaranteed no earlier than the 2021 Term Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by any Subsidiaries the Borrower and the applicable Incremental Term Lenders in their sole discretion), such Other Term Loans shall have terms that are current market terms for such type of Indebtedness (as reasonably determined by the Borrower in good faith), (iv) [reserved], (v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Borrower, junior in right of security with the Initial Revolving Loans or unsecured (provided, that do not guarantee if such Other Revolving Loans rank junior (x) in right of security with the existing Initial Revolving Loans, such Other Revolving Loans and shall be secured subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a subordination agreement on a pari passu basis by customary market terms at the same Collateral time of issuance thereof), (and no additional collateral) securing the then existing Obligations;
(ii) (Avi) the Maturity Date final maturity date of any Incremental Term such Other Revolving Loans shall be no earlier than the then Latest 2025 Extended Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rateswhich shall, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Incremental Revolving Facility Lenders in their sole discretion), shall have material terms that are (x) substantially similar to the material terms of the Initial Revolving Loans or (y) when taken as a whole, no more favorable (as determined by the Borrower in good faith) to the Incremental Revolving Facility Lenders providing such Incremental Term Loan; provided that, the terms Other Revolving Loans than those applicable to any such Incremental Term the Initial Revolving Loans (except as expressly permitted above and in each case, except for covenants or other provisions (I)(A) applicable only to periods after the then Latest Maturity DateDate in effect at the time such Other Revolving Loans are incurred or (B) that are not, taken as a whole, materially more restrictive conformed (or added) to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then-existing Facilities, or (II) that are otherwise reasonably acceptable to the Administrative Agent), (vii) with respect to any syndicated Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that is secured by Liens on the Collateral pari passu with the Liens on the Collateral securing the 2021 Term Loans (other than any Inside Maturity Debt) and is incurred pursuant to clause (ii) of the definition of Incremental Amount (other than through reclassification), the All-in Yield in respect of any such Other Term Loan may not exceed the All-in Yield in respect of such 2021 Term Loans on the First Amendment Effective Date by more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then existing Lenders)the Applicable Margin (or the “Term SOFR floor” as provided in the following proviso) applicable to such 2021 Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; andprovided that, to the extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, 112
(viA) subject such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any mandatory prepayment or commitment reduction hereunder and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Term Loans in any mandatory prepayment hereunder; and (ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party, (B) the borrower of any Incremental Term Facility shall be a Loan Party and (C) the borrower of any Incremental Revolving Facility shall be the Borrower. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (i) unless subject to the LCT Provisions, (wx) with respect to any Incremental Term Loan Commitment or Incremental Revolving Facility Commitment established to finance a Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement, no Default or Specified Event of Default shall exist giving pro forma effect have occurred or be continuing or would result therefrom and (y) with respect to such any other Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, no Event of Default shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as reasonably required by the relevant Incremental Assumption Agreement consistent with those delivered pursuant Section 4.02 and such additional customary documents and legal opinions filings (to the extent required to be delivered on the Closing Date pursuant to Section 4.02 and Section 5.10) as the Administrative Agent may reasonably request, subject to such matters as Section 5.10(g), to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are reasonably requested secured by the Administrative Agent. Upon any increase Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of any then-existing Class of Term Loans and Revolving Facility Loans; provided, that, solely to the extent required by the applicable Incremental Assumption Agreement, the Lenders shall representations and warranties contained in 113
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion). No consent of any Lender shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments under any Class (or a 114
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the MFN Provisions, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have no more restrictive covenants, taken as a whole, to the Borrower, than any existing Class of Term Loans (in each case, except for such more restrictive covenants (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Ex
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 in the aggregate the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, the “that each Incremental Revolving Facility Lender and Incremental Term Loan Lenders”)Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental Term Lender, such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent)requested, (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Incremental Other Term Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the existing Loans and same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, provided that the Yield in respect of any Other Term Loans secured on a pari passu basis by with the same Collateral Term B Loans made on or prior to the date that is eighteen (and no additional collateral18) securing months after the then existing Obligations;
Fifth Amendment Effective Date shall not exceed 0.50% or more above the Yield in respect of the Term B Loans or, if it does so exceed 0.50% or more of such Yield in respect of the Term B Loans, the Applicable Margin in respect of the Term B Loans shall be increased so that the Yield in respect of such Other Term Loans is not greater than 0.50% above the Yield in respect of the Term B Loans, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term B Loans in any mandatory prepayment;
and (iv) from and after the effectiveness of the each Incremental Term Loans Assumption Agreement, the associated Incremental Revolving Facility Commitments shall have such interest ratesthereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, optional prepayment provisions upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.20 unless, subject to Section 1.04: (i) unless on the date of such effectiveness, the conditions set forth in paragraphs (wb) no and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that thecase of any Incremental Limited Condition Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall exist be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made thereunder and the incurrence application of Indebtedness thereunder the proceeds therefrom as if made and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the Borrowings form of such Class additional Term B Loans, when originally made, are held by the Lenders included in each Borrowing of such Class outstanding Term B Loans on a pro rata basis basis, and (ii) all Revolving Facility Loans in accordance with respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans or Term Benchmark Loans, as applicable, to ABR Loans reasonably required by the respective amount Lenders to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (l) of Term Loans of such Class held by each Lender.this
Appears in 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Incremental Commitments. (1a) The After the Restatement Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Term A Loans, unless otherwise agreed by Term A-1 Loans or Term B Loans, as applicable, form a single Class of) Term A Loans, Term A-1 Loans or Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentTerm A Loans, be not less than ten Business Days after the date such notice is deliveredTerm A-1 Loans and Term B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any (x)(A) commitments to make additional Term B Loans shall not be guaranteed by any Subsidiaries have the same terms as the Term B Loans, and shall form part of the Borrower that do not guarantee same Class as the existing Term B Loans, (B) commitments to make additional Term A Loans shall have the same terms as the Term A Loans, and shall be secured on a pari passu basis by form part of the same Collateral Class as the Term A Loans (and no shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) and (C) commitments to make additional collateralTerm A-1 Loans shall have the same terms as the Term A-1 Loans, and shall form part of the same Class as the Term A-1 Loans (and shall only be permitted to the extent they are primarily syndicated to regulated banks in the primary syndication thereof) securing and (y) Incremental Revolving Facility Commitments shall have the same terms as the then existing Obligations;outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of all then outstanding Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to this Section 2.21 shall rank equally and ratably in right of security with the Term A Loans and Term B Loans,
(A1) other than with respect to Permitted Earlier Maturity Debt, the Maturity Date final maturity date of any Incremental Term Loans that are not additional Term A Loans, additional Term A-1 Loans, additional Term B Loans or Incremental Term A Loans shall be no earlier than the then Latest Term B Maturity Date and (B) in effect at the Weighted Average Life to Maturity date of any incurrence of such Incremental Term Loans shall be no shorter than the remaining Weighted Average Life and (2) except as to Maturity of any then outstanding Class of Term Loans;
pricing, amortization, final maturity date and participation in mandatory prepayments (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rateswhich shall, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided thatLenders in their sole discretion), shall have the terms applicable to any such Incremental Term Loans that (except as expressly permitted above and except for covenants or other provisions applicable only to periods after determined by the then Latest Maturity DateBorrower in good faith) are notno more restrictive, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the Term B Loans or such other terms applicable as shall be reasonably satisfactory to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.,
Appears in 1 contract
Sources: Credit Agreement (Centurylink, Inc)
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent Agent, (x) at any time and from time to timetime following the date that is the earlier of (1) three months earlier than the Project Octavius Scheduled Completion Date and (2) the Commencement of Operations of Project Octavius, request Incremental Revolving Facility Commitments in an aggregate amount not to exceed $25 million from one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion, and (y) at any time and from time to time (but, in the case of any Incremental Term Loan Commitments, following the Commencement of Operations of Project Linq), request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (own discretion. Any such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $10,000,000 and minimum increments 10 million or equal to the remaining amount available pursuant to clause (x) or (y) of $10,000,000the foregoing sentence, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agentas applicable), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallany such date, unless otherwise agreed by an “Increased Amount Date”), (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term B Loan Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Other Term Loans”) and (iv) that the applicable Borrower is in compliance on such date in all material respects with all applicable material Construction Contracts in effect on such notice date and is deliveredadhering in all material respects to the then current Project Schedule (as defined in the Disbursement Agreement).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Loans and Term B Loans, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject with respect to the aboveOctavius Borrower, any prior to the Commencement of Operations of Project Octavius, all proceeds from Incremental Revolving Facility Loans and Incremental Term Loans shall be on terms used to pay costs in connection with Project Octavius and, with respect to the Linq Borrower, prior to the Commencement of Operations of Project Linq, all proceeds from Incremental Revolving Facility Loans and pursuant Incremental Term Loans shall be used to documentation pay costs in connection with Project Linq and (v) any Incremental Revolving Facility Lender shall be reasonably satisfactory to be determined by the Borrower Borrowers and the Administrative Agent; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Other Term Loan; provided that, Loan in the terms applicable to initial primary syndication thereof) in respect of any such Incremental Other Term Loans (except Loan shall be the same as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms that applicable to the then outstanding Commitments and LoansTerm B Loans except that the interest rate margin in respect of any Other Term Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan in the initial primary syndication thereof) may exceed the Applicable Margin for the Term B Loans (which shall, as for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term B Loans in the initial primary syndication thereof), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Borrower Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (except which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term B Loans in the initial primary syndication thereof), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan in the initial primary syndication thereof), is no more than 1/2 of 1% higher than the Applicable Margin for the Term B Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term B Loans in the initial primary syndication thereof). Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist have occurred and be continuing or would result therefrom and (ii) the Borrowers shall be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such All Incremental Term Loans and Incremental Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under the incurrence Credit Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under the Credit Agreement and the other Loan Documents. Each of Indebtedness thereunder (assuming the parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans, as applicable, on a pro rata basis. The Borrowers agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Commitments either, at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrower under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that do not guarantee are customary for “high yield” securities (as determined in good faith by the existing Loans and Borrower) or (z) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and in effect on the date of incurrence (Bprovided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term B Loans or Other Term Loans;
) (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
provided that this clause (iv) Incremental shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between B Facility Maturity Date in effect on the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class date of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loansincurrence);,
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest Revolving Facility Maturity DateDate with respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive applicable to the Initial Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (x) is a U.S. dollar denominated term loan incurred by the Borrower and its Restricted Subsidiaries(y) ranks pari passu in right of security with the Term B Loans, than the terms All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Commitments and Loansthe Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, as reasonably determined by the Borrower (except Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) to the extent required by the relevant Incremental Assumption Agreement, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder be continuing or would result therefrom and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date, participation in prepayments and commitment reductions and covenants and other provisions applicable only to periods after the Term B Facility Maturity Date existing at the time of incurrence of such Extended Term Loan (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, th
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Escrow Release Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 10.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or junior ranking as to security and/or other terms different from the date Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Loans and Term B Loans, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, (x) such other Term Loans shall be established as a separate facility from the Term B Facility, (y) such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (z), for the avoidance of doubt, shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term B Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) except as to pricing, amortization, final maturity date and participation in mandatory prepayments (which shall, subject to the aboveclause (vi) and (vii) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall have (x) substantially the same terms as the Initial Revolving Loans or (y) such Incremental other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu in right of security with the Initial Revolving Loans,
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term LoanLoan incurred prior to the eighteenth month anniversary of the Escrow Release Date that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding Commitments outstanding, and
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and Loans(y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, as reasonably determined by upon the Borrower (except effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such have occurred and be continuing or would result therefrom or (ii) in the case of an Incremental Term Loan Commitment and or Incremental Revolving Facility Commitment incurred in connection with a Permitted Business Acquisition or another Investment permitted hereunder, on the incurrence date of Indebtedness thereunder and use such effectiveness, no Event of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Default under Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and7.01(b), only to the extent a Borrowing is made on such date, clause (c), (h) is required to or (i) shall have occurred and be complied with); continuing or would result therefrom.
(yd) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time after the Escrow Release Date by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each L/C Issuer, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis
Appears in 1 contract
Sources: First Lien Credit Agreement (Caesars Acquisition Co)
Incremental Commitments. (1a) The Borrower or any Co-Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower or such Co-Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2024 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the 2024 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans, (y) commitments to make term loans with terms identical to Term B-2 Loans or (z) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans or Term B-2 Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent each applicable Co-Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans, Term B-2 Loans and/or 2024 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing ObligationsTerm B-1 Loans, Term B-2 Loans or 2024 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term
B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2024 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2024 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2024 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2024 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) (A) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding Commitments outstanding; and (B) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-2 Loans, the All-in Yield shall be the same as reasonably determined that applicable to the Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the Borrower “Term B-2 Yield Differential”) then the Applicable Margin (except or the “SOFR floor” as provided in the following proviso) applicable to the Term B-2 Loans shall be increased such that after giving effect to such increase, the Term B-2 Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term B-2 Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term B-2 Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-2 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-2 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2024 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that this Agreement is amended not a Loan Party; and
(which x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Revolving Facilities and (y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each Lender.applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental A
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment established for purposes of financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the approval of the Administrative Agent (such and, solely in the case of Incremental Revolving Facility Lenders, the “Issuing Banks), to the extent the same would be required for an assignment under Section 9.04 (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Lender is an existing Lender or such Incremental Revolving Facility Lender is an existing Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) [reserved] and (iv) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term A Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm A Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent (if applicable) and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term A Loans and/or any Incremental Revolving Facility Commitments shall have the Incremental same terms as the Term A Loans or the Revolving Facility Commitments to make Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall not be guaranteed by any Subsidiaries rank pari passu in right of security with the Liens on the Collateral securing the Term A Loans or, at the option of the Borrower Borrower, be unsecured (provided that do not guarantee the existing if such Other Term Loans and shall are unsecured, such Other Term Loans will be secured on established as a pari passu basis by the same Collateral (and no additional collateral) securing separate facility from the then existing Obligations;Term Loans subject to a Permitted Junior Intercreditor Agreement),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term A Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term A Loans (except to the extent such covenants and other terms apply solely to any period after the Term A Facility Maturity Date or are otherwise reasonably acceptable to the Administrative Agent, it being understood that, to the extent any financial maintenance covenant is added for the benefit of any Other Term Loan, no consent shall be required from the Administrative Agent or any Lender if such financial maintenance covenant is also added for the benefit of all Facilities then outstanding,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term A Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Incremental Revolving Facility Commitments and Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Revolving Loans,
(vi) except as to discounts and fees (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Incremental Revolving Facility Commitments and Incremental Revolving Loans shall have the same terms as the Initial Revolving Loans,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security and payment with the Term A Loans, if the All-in Yield in respect of any such Incremental Other Term LoanLoan exceeds the All-in Yield in respect of such Term A Loans on the Closing Date by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term A Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term A Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term A Loans then outstanding Commitments and Loans, as reasonably determined by outstanding,
(viii) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of Term A Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) there shall be no assets securing any Incremental Term Loan, Incremental Revolving Loan or Incremental Commitment that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower (or, if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds be continuing or would result therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Security Documents and title date-down and modification endorsements, which, in the case of any such amendments and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended R
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Tranche 1 Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Tranche 1 Revolving Facility Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans on the date such notice is deliveredsame terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term B Loans, Term B-2-3 Loans and/or additional Tranche 1 Revolving Facility Loans shall have the Incremental same terms as the Term B Loans, Term B-2-3 Loans or Tranche 1 Revolving Facility Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans or are unsecured, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligations;below),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Tranche 1 Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Tranche 1 Revolving Facility Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Tranche 1 Revolving Facility Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), such Incremental Other Revolving Loans shall have (x) substantially similar terms as the Tranche 1 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B-3 Loans on the ClosingAmendment No. 5 Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B-3 Loans on the ClosingAmendment No. 5 Effective Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-3 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-3 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B-3 Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000735,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B-3 Facility Maturity Date;
(viii) (A) such Incremental Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Tranche 1 Revolving Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Datebut not a greater than pro rata basis) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (d) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of any existing Class of Term Loanssuch amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the Lenders shall relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender..
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Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the option of the Borrowers in Dollars and/or Euro and, in the case of any Incremental Revolving Facility Commitments, any Alternate Currency in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent unless such Incremental Revolving Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such Lenders, the “Incremental Term Loan Lenders”person pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be (x) in minimum increments of $5,000,000 and a minimum amount of $10,000,000 25,000,000 and (y) minimum increments of $10,000,000, €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shalltogether with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be not less than ten Business Days after (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the date such notice is deliveredRevolving Facility Loans (“Other Incremental Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Assumption Agreement and, such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of have (A) substantially the Borrower that do not guarantee same terms as the existing Initial Term Loans and or (B) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Facility, (Biii) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Term Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (A) substantially the same terms as the Initial Revolving Facility or (B) such interest ratesother terms as shall be reasonably satisfactory to the Administrative Agent, optional prepayment provisions and fees as may be agreed between (v) in the Lenders providing event that the applicable All-in-Yield for such Incremental Term Loan Commitments and is greater than the Borrower (except that any Incremental All-in-Yield for the existing Initial Term B Loans forming an addition to an by more than 50 basis points, then the Applicable Margin for the existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject , shall be increased to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by extent necessary so that the Borrower and the Lenders providing All-in-Yield for such Incremental Term Loan; provided thatLoan Commitments is no more than 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the terms applicable case of any Incremental Revolving Facility Commitments in effect prior to the one year anniversary of the Closing Date, in the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Applicable Margin for the existing Revolving Facility shall be increased so that the All- in-Yield for the existing Revolving Facility is no more than 50 basis points less than the All-in-Yield for the Incremental Revolving Facility Commitments, (vii) at the time of and immediately after giving effect to such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Loan Commitments and Loansand/or Incremental Revolving Facility Commitments, as reasonably determined by applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the Borrower representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent that such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date). 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 is shall be amended to the extent (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (bii) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andexcept as otherwise specified in the applicable amendment, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and (with sufficient copies for each of the Lenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) legal opinions as with respect to such matters as are customary matters, board resolutions, Notes and other customary closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the Closing Date under subsection 4.02.
(d) Each of any existing Class of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans) in the form of additional Initial Term Loans, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans and shall have the same Guarantees.
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Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make Revolving Loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 10.06, the “applicable L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund of a Revolving Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,00020,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Loans on the Administrative Agentsame terms as the Committed Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to any existing Class of Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term Loans of an existing Class of Term Loans and/or additional Committed Revolving Loans shall have the Incremental same terms as such existing Term Loans or Committed Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.16 shall rank pari passu or, at the option of the Borrowers, junior in right of security with the existing Term Loans (provided, that if such Other Term Loans rank junior in right of security with the existing Term Loans, the Liens securing such Other Term Loans shall be junior liens and, for the avoidance of doubt, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligationsbelow);
(ii) (Aiii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term Loan Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the existing Term Loans;
(iiiv) Other Revolving Loans incurred pursuant to clause (a) of this Section 2.16 shall rank pari passu in right of security with the Committed Revolving Loans;
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Maturity Date with respect to the Committed Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent; and
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.16 that ranks pari passu in right of security with the initial Term Loans, the All-in Yield shall participate be the same as that applicable to the Term Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than pro rata basis the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the then “LIBOR floor” applicable to the outstanding Term Loans in any mandatory prepayment;
(iv) Incremental shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall have such interest rates, optional prepayment provisions be amended to the extent (but only to the extent) necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.01. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.16 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Borrower Administrative Agent with the Borrowers’ consent (except that any Incremental Term Loans forming an addition not to an existing Class of Term Loans shall have be unreasonably withheld) and furnished to the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment under clauses (a) and (b) above shall become effective under this Section 2.01(b) 2.16 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are 4.02 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (and, only to the extent a Borrowing is made on such date, clause (cii) is required to no Event of Default shall have occurred and be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower continuing or would be in compliance with Section 8.11 result therefrom and (ziii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 3.05 shall apply to any conversion of Eurocurrency Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.14 (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.16), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of such any Class of Term Loans and/or Revolving Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Commitments of such Revolving Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Commitment (such extended Revolving Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.16(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Loan Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any L/C Issuer or the Swing Line Lender, such terms as shall be reasonably satisfactory to such L/C Issuer or the Swing Line Lender, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of the Swing Line Lender and each L/C Issuer, participations in Swing Line Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Co
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Sources: First Lien Credit and Guaranty Agreement (Quality Care Properties, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request an increase in the aggregate amount of the Commitments (each such increase, an “Incremental Term Loan Commitments Commitment”), as applicable, in an aggregate amount not to exceed $100,000,000 50,000,000, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)all of which must be permitted to become assignees of Commitments or Loans under Section 9.04. Such notice 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 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by equal to the Administrative Agent), remaining unused amount) and (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered)effective.
(2b) The Loan PartiesBorrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld) and, subject to the prior written consent of the Administrative Agent (such consent not to be unreasonably delayed or withheld), additional banks, financial institutions and any other Person whose consent is institutional lenders who will become Incremental Lenders in connection therewith, in each case, solely to the extent such consent, if any, would be required under Section 9.04 for an assignment of Loans or Commitments, as provided above applicable, to additional banks, financial institutions and other institutional lenders. The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Person. The terms and provisions of the Incremental Commitments shall be identical to those of the Commitments. The Incremental Commitments shall rank pari passu in right of payment and security with the Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each Additional Credit Extension Amendment pursuant of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to this clause the extent (dbut only to the extent) shall specify necessary to reflect the existence and terms of the applicable Incremental Term Loans; provided that:
(i) Commitments evidenced thereby, and the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments Administrative Agent and the Borrower (except that any Incremental Term Loans forming an addition may revise this Agreement to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);evidence such amendments.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.18 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (a) and (b) of Section 5.02 are satisfied whether or not 4.02 shall be satisfied, a Credit Extension is made on certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (andii) except as otherwise specified in the applicable Incremental Assumption Agreement, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions as to such matters as are other closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the ClosingEffective Date under Section 4.01 and (iii) all fees and expenses owing in respect of any existing Class of Term Loans, such Incremental Commitment to the Administrative Agent and the Lenders shall take have been paid in full.
(d) On the date of effectiveness of any action as may Incremental Commitments, the Borrower shall (A) prepay the outstanding Loans (if any) in full, (B) simultaneously borrow new Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Borrowings, with Adjusted LIBO Rates equal to the outstanding Adjusted LIBO Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be reasonably required effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders, the Incremental Lenders and the existing Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent to ensure that Agent, so that, after giving effect thereto, the Borrowings of such Class Loans are held ratably by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans Commitments of such Class held by each LenderLenders (after giving effect to such Incremental Commitments) and (C) pay to the Lenders the amounts, if any, payable under Section 2.13 as a result of any such prepayment.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their sole discretion (such Lendersown discretion; provided, the “that each Incremental Term Loan Lenders”Lender and/or Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) (a) whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Tranche B Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the date Tranche B Term Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Revolving Facility Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Loans to be made thereunder; provided that:
provided, that (i) the Incremental Other Term Loans and Other Revolving Facility Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee the existing Tranche B Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;
Tranche B Term Loans, as applicable, (ii) the final maturity date of (Aa) the Maturity Date of any Incremental Other Term Loans shall be no earlier than the then Latest Term Loan Maturity Date and and/or (Bb) any Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date, (iii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
and (iv) Incremental Term the Other Revolving Facility Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject require no scheduled amortization or mandatory commitment reductions prior to the aboveRevolving Facility Maturity Date; provided, any Incremental Term Loans further that the interest rate margin (which shall be on terms and pursuant deemed to documentation include all upfront or similar fees or original issue discount payable to be determined by the Borrower and the all Lenders providing such Incremental Other Term Loan and/or Other Revolving Facility Loan; provided that, ) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall be the terms applicable to any such Incremental Term Loans (except same as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms that applicable to the then outstanding Commitments and Term Loans and/or the Revolving Facility Loans, as reasonably determined by ; except that the Borrower (except to the extent that this Agreement is amended interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall not require the consent of any Lender) be deemed to incorporate include all upfront or similar fees or original issue discount payable to all Lenders providing such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Other Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.and/or
Appears in 1 contract
Incremental Commitments. (1a) The After the Closing Date has occurred, any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (it being understood that no Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a minimum amount of $10,000,000 and minimum increments the Dollar Equivalent of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Euro Term Loans or Tranche B-2 Dollar Term Loans, unless otherwise agreed by as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-2 Dollar Term Loans, as applicable, or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent applicable Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
(i) any (x) commitments to make additional Term B Loans shall have the same terms as the applicable Term B Loans, and shall form part of the same Class of the applicable Term B Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Term B Loans or, at the option of the applicable Borrower, shall rank junior in right of security with the Term B Loans (provided that, if such Other Incremental Term Loans rank junior in right of security with the Term B Loans, such Other Incremental Term Loans shall be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such security interest and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(iiiii) (Ax) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii))), (y) no Incremental Facility shall mature on or prior to the latest Revolving Facility Maturity Date and (Bz) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the Incremental Term Lenders in their sole discretion), such Other Incremental Term Loans shall have (1) the same terms as the Term B Loans or (2) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the maturity of the Term Facility),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans with the longest remaining Weighted Average Life to Maturity (other than with respect to (I) any then outstanding Class Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans;Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iv))),
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the applicable Borrower, except that the All-in Yield in respect of any such Other Incremental Term Loan that is Other First Lien Debt and incurred prior to the date that is eighteen months after the Closing Date may exceed the All-in Yield in respect of the Initial Term Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “floor” as provided in the following proviso) applicable to such Initial Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis with basis) than the then outstanding Term B Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than a Borrower) or guarantor (other than the Lenders providing the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments,
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Parent or its Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Collateral; and
(viix) subject the Parent shall be in Pro Forma Compliance with the Financial Covenants (if then applicable). Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Parent’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) and clause (ix) of the preceding clause (b) shall be tested at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrowers set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Parent agrees that Section 2.16 shall apply to any conversion of Term SOFR Loans or Eurocurrency Rate Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower mayAfter the primary syndication of the Revolving Credit Facility and the Term Facility has been completed, by written notice to the Administrative Agent from time to time, (i) the German Borrower may request Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments and (ii) the U.S. Borrower may request Incremental Revolving Facility Commitments, in each case an amount not to exceed $100,000,000 the Incremental Amount, from one or more Eligible AssigneesIncremental Term Lenders, in Incremental Revolving Facility Lenders and/or Incremental Synthetic L/C Lenders (each case, that is a Farm Credit Lender (which, in each case, of which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if anyLender), as would be required in connection with an assignment of a Term Loan to such Person) applicable, willing to provide such Incremental Term Loans Loans, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and the Issuing Bank (such Lenders, the “Incremental Term Loan Lenders”which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make Incremental Term Loans in the date form of additional Term B Loans or commitments to make term loans with pricing, maturity and/or amortization terms different from the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Synthetic L/C Commitments, whether such notice is deliveredIncremental Synthetic L/C Commitments are to be Synthetic L/C Commitments or commitments to make credit-linked deposits with pricing terms different from the Credit-Linked Deposits (“Other Credit-Linked Deposits”).
(2b) The Loan Partiesapplicable Borrowers and each applicable Incremental Term Lender, the Administrative Agent and any other Person whose consent is required as provided above Incremental Synthetic L/C Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) Commitments and/or Incremental Synthetic L/C Commitments shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Synthetic Credit-Linked Deposits; provided that:
that (i) the Incremental Other Term Loans and/or Other Credit-Linked Deposits shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee the existing Term B Loans and Credit-Linked Deposits and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or Credit-Linked Deposits, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans or Other Credit-Linked Deposits shall be no earlier than the then Latest Term B Facility Maturity Date and (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental the Other Term Loans and Other Credit-Linked Deposits, as applicable, shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Other Term Loans or Other Credit-Linked Deposits, as the case may be. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest ratesAssumption Agreement, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are 4.01 shall be satisfied whether or not and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase of any existing Class of , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, Revolving Facility Loans in respect of Incremental Revolving Facility Commitments and/or obligations of the German Borrower in respect of Incremental Synthetic L/C Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Synthetic L/C Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, Revolving Facility Loans and Synthetic L/C Commitments and (iii) the Senior Secured Leverage Ratio shall be, on a Pro Forma Basis after giving effect to such Incremental Commitments and the Loans and deposits to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no greater than 3.75 to 1.00.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that all (i) Incremental Term Loans (other than Other Term Loans) in the Borrowings form of such Class additional Term B Loans, when originally made, are held by the Lenders included in each Borrowing of such Class outstanding Term B Loans on a pro rata basis and (ii) Revolving Facility Loans in accordance with the respective amount respect of Term Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans of such Class held the applicable Borrower on a pro rata basis. Each Borrower agrees that Section 2.16 shall apply to any costs incurred by each Lenderany Lender to effect the foregoing.
Appears in 1 contract
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is not prohibited by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation same terms as the Administrative Agent shall reasonably specify Initial Revolving Loans or (y) commitments to evidence make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have Commitments, whether such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation are to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) commitments to make term loans on the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether same terms as the Term B Loans or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basiscommitments to make term loans with pricing, giving effect to such Incremental maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of “Other Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender”).
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Facility Commitments either, at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrower under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans or Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the InitialFifth Amendment Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the InitialFifth Amendment Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that do not guarantee are customary for “high yield” securities (as determined in good faith by the existing Loans and Borrower) or (z) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and in effect on the date of incurrence (Bprovided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term B-1 Loans or Other Term Loans;
) (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
provided that this clause (iv) Incremental shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between B-1 Facility Maturity Date in effect on the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class date of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loansincurrence);,
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest Revolving Facility Maturity DateDate with respect to the InitialFifth Amendment Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and InitialFifth Amendment Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as reasonably determined in good faith by the Borrower Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the InitialFifth Amendment Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the InitialFifth Amendment Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the InitialFifth Amendment Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the InitialFifth Amendment Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (w) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower, (x) ranks pari passu in right of security with the Term B-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time and the “SOFR floor” applicable to the initial Term B-1 Loans, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) to the extent required by the relevant Incremental Assumption Agreement, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder be continuing or would result therefrom and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Administrative Agent. Upon any increase Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) On the date of the making of any existing Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the Lenders contrary set forth in Section 2.07 or Section 2.13, such Incremental Term Loans shall take any action be added to (and constitute a part of, be of the same Type as may be reasonably required by and, at the Administrative Agent to ensure that election of the Borrowings Borrower, have the same Interest Period as) each Borrowing of such Class are held by the Lenders outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in accordance with the respective amount each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class held and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans denominated in Dollars to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such ▇▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender.”) will be established under this Agreement by implementing an Increm
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the 2021 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the 2021 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan PartiesBorrower, the Administrative Agent each applicable Co-Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B-1 Loans or 2021 Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2021 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2021 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2021 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the 2021 Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shal
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Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $10.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 50.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make Term B-6 Loans or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B-6 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be not less than ten Business Days after Extended Maturity Revolving Facility Commitments or commitments to make revolving loans with interest rates and/or fees and/or maturity and/or other terms different from Revolving Loans under the date such notice is deliveredExtended Maturity Revolving Facility Commitments (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) except as to interest rates, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Loans and Term B-6 Loans, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term B Facility Maturity Date and in effect on the date of incurrence, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B-6 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) Incremental Term Loans shall have such except as to interest rates, optional prepayment provisions fees and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower final maturity date (except that any Incremental Term Loans forming an addition which shall, subject to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
clause (v) subject to the aboveof this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility Loans under the Extended Maturity Revolving Facility Commitments or (y) such Incremental Term Loan; provided other terms as shall be reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date applicable to Extended Maturity Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the terms applicable to effectiveness of any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notAssumption Agreement, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist have occurred and be continuing or would result therefrom, (ii) the Borrower shall be in Pro Forma Compliance (without giving pro forma effect to the proviso in the definition of Total First Lien Senior Secured Net Debt) after giving effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that the Borrower shall not be required to be in such Pro Forma Compliance with respect to Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments not to exceed $500.0 million in the aggregate since the Closing Date or with respect to Incremental Term Loan Commitments in respect of Refinancing Term Loans or Extended Term Loans or Incremental Revolving Facility Commitments in respect of Extended Revolving Facility Commitments or Replacement Revolving Facility Commitments and (iii) after giving effect to the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to any Loans under such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments on the date of such effectiveness such Loans shall constitute Obligations that are secured by the Collateral and such incurrence shall not result in a reduction in the incurrence outstanding amount of Indebtedness thereunder Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes.
(assuming d) Each of the parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B-6 Loans, when originally made, are included in each Borrowing of outstanding Term B-6 Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments with respect to any Revolving Facility, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments and to otherwise modify the terms of such Lender’s Loans and/or Commitments pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B-6 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term B Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall (x) be a Revolving Facility Commitment with the same terms as the Extended Maturity Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the First Lien Net Proceeds of which are used to repay Term Loans pursuant to Section 2.11(h). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing 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 Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01 shall be satisfied; (ii) the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the then remaining weighted average life to maturity of the Term B-6 Loans; and (iii) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and final maturity which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) shall be substantially similar to, or less favorable to the Lenders providing such Refinancing Term Loans than, those applicable to the Term B-6 Loans except to the extent such covenants and other terms apply solely to any period after the latest final maturity of the Term Loans in effect on the date of incurrence of such Refinancing Term Loans. In addition, notwithstanding the foregoing, the Borrower may establish Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), so long as (i) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof and (ii) if the Revolving Facility Credit Exposure outstanding on the Refinancing Effective Date would exceed the aggregate amount of Revolving Facility Commitments outstanding i
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approvals shall not be unreasonably withheld or delayed), in each case, unless such Lenders, Incremental Revolving Facility Lender is a Revolving Facility Lender prior to the “establishment of such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum aggregate amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days (x) commitments to make term loans on the same terms as the 2023 Refinancing Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the(x) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), Term B Loans and (y) at all times on and after the date First Amendment Effective Date (after giving effect thereto), the 2023 Refinancing Term B Loans (such notice is deliveredterm loans at any given time, “Other Term Loans”).. 124
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional 2023 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have the Incremental same terms as the 2023 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligations;below),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date applicable to the 2023 Refinancing Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2023 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the 2023 Refinancing Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement), 125
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), such Incremental Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the 2023 Refinancing Term B Loans on the ClosingFirst Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such 2023 Refinancing Term B Loans on the ClosingFirst Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2023 Refinancing Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2023 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2023 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term B Facility Maturity Date applicable to the 2023 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans, on a junior basis) than the 2023 Refinancing Term B Loans in any mandatory prepayment hereunder; and 126
(A) there shall be no obligor in respect of any Incremental Term Loans Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (except as expressly permitted above B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and except for covenants or any other provisions applicable Loan Documents shall be amended to the extent (but only to periods after the then Latest Maturity Dateextent) are not, taken necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as a whole, materially more restrictive provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and its Restricted Subsidiaries, than the terms applicable furnished to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of any existing Class of Term Loanssuch amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the Lenders shall relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans. 127
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by each Lender.implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Exte
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower that do not guarantee and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing Loans and at the time of incurrence of such additional Term Facility), or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term B Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of or Other Term Loans);,
(v) except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveclause (vi) and (vii) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing such Incremental Term Loan; provided thatin their sole discretion), the Other Revolving Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to any such Incremental Term the Initial Revolving Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest latest Revolving Facility Maturity DateDate existing at the time of incurrence of such Incremental Revolving Facility Commitments) are not, taken or (y) such other terms as a whole, materially more restrictive shall be reasonably satisfactory to the Borrower and its Restricted SubsidiariesAdministrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the terms Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred prior to the twelve-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Commitments and Loansthe Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, as reasonably determined by the Borrower (except Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) no Default or Event of Default shall exist giving pro forma effect to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Borrower and the Master Lease Tenants) or (i) (with respect to the Borrower and the Master Lease Tenants) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Term Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such Extended Term Loan), or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates (without giving effect to any amortization or prepayments on such Class of Term Loans), (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Revolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Extended Revolving Facility Commitments) or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments hereunder. Upon the
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Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Revolving Facility Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Revolving Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Revolving NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that (i) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Lender is a Lender, and (ii) each Incremental Revolving Facility Commitment shall be on the “same terms as the existing Revolving Facility Commitments and in all respects shall become a part of the Revolving Facility hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Term Loan Lenders”Revolving Facility to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans Amount, and (iii) the date on which such Incremental Term Loan Revolving Facility Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered“Increased Amount Date”).
(2) . The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentRevolving Facility Commitment of such Incremental Revolving Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) parties hereto hereby agrees that upon the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date effectiveness of any Incremental Term Loans Assumption Agreement, this Agreement shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except deemed amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for increase the benefit Revolving Facility by the amount of the then existing Lenders); andIncremental Revolving Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(via) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) effectiveness, the conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are satisfied whether or not 4.01 shall be satisfied, and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (andand executed by a Responsible Officer of the Company, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents legal opinions, board resolutions and legal opinions other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Loans in respect of any existing Class Incremental Revolving Facility Commitments are secured by the Collateral ratably with all other Revolving Loans.
(b) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Maturity Date, request that the Incremental Term Loan Commitments not to exceed $100,000,000 from Amount be provided by one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Revolving Facility Commitments in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Revolving Facility Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) whether such Incremental Revolving Loan Commitments are to be not less than ten Business Days after Revolving Facility Commitments or commitments to make revolving loans with pricing terms different from the date such notice is deliveredRevolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentRevolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansRevolving Facility Commitments; provided that:
provided, that (i) the Incremental Term Other Revolving Loans shall not be guaranteed by any Subsidiaries have the same guarantees as and rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the existing Loans same terms as the Revolving Facility Loans, as applicable, and (y) intercreditor arrangements and such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (Administrative Agent and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date final maturity date of any Incremental Term Other Revolving Loans shall be no earlier than the then Latest Maturity Date and (B) Date. Each of the Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loans Assumption Agreement, this Agreement shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, both before and after such effectiveness, (x) there is no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a the Borrower shall be in Pro Forma BasisCompliance, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iii) the Administrative Agent shall have received customary legal opinions opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans in respect of any the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Class Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loan Commitments or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans Loan Commitments and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion discretion; provided, that each Incremental Lender providing a commitment to make revolving loans shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent and the Issuing Banks, as applicable (such Lendersin each case, the “Incremental Term Loan Lenders”which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), and (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shalleffective. Notwithstanding anything herein to the contrary, unless otherwise agreed by no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be in the Administrative Agent, be not less than ten Business Days after the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments (including, with respect to the currency applicable to such Incremental Term Loans and/or Incremental Revolving Facility Commitments if not in Dollars); provided provided, that:
(i) the interest rate and fees in connection with any Incremental Term Loans Commitments shall not be guaranteed determined by any Subsidiaries of the Borrower that do not guarantee and the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing ObligationsIncremental Lenders in their sole discretion;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than rank pari passu in right of payment and, if secured, pari passu in right of security with the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term LoansRevolving Facility;
(iii) no any Incremental Term Loan Revolving Facility Commitments shall participate on a greater constitute an increase to, and have the same terms (other than pro rata basis with the then outstanding Term Loans in fees) as, any mandatory prepayment;existing Class of Revolving Facility Commitments hereunder,
(iv) Incremental Term Loans and Incremental Revolving Facility Commitments shall have such interest rates, optional prepayment provisions and fees as may not be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and secured by any asset of the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (or its Restricted Subsidiaries other than upfront fees) as the applicable existing Class of Term Loans)Collateral;
(v) subject to the above, any Incremental Term Loans not denominated in Dollars shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as in a whole, materially more restrictive currency reasonably acceptable to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower Administrative Agent;
(except to the extent that this Agreement is amended (which vi) there shall not require the consent be no borrower or guarantor in respect of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)Incremental Commitments that is not a Loan Party; and
(vivii) subject Incremental Term Loans shall have maturity no earlier than 91 days after the Maturity Date of the Revolving Facility in effect on the Closing Date. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary or advisable to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08 and amendments to include other currencies as applicable. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment and Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist giving pro forma effect exist; (ii) to such the extent required by the Lenders providing the relevant Incremental Term Loan Commitment Facility, the representations and warranties of the incurrence of Indebtedness thereunder Borrower set forth in this Agreement shall be true and use of proceeds therefrom; correct in all material respects (other than (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on qualified by materiality or “Material Adverse Effect,” in which case, such date, clause (c) is required to representations and warranties shall be complied with); true and correct and (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming extent that such commitments are fully drawn on representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 ); and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase .
(d) Each of any existing Class of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Loans in respect of Incremental Commitments that constitute the same Class as any existing Class, when originally made, are included in each Borrowing of the applicable Class of outstanding Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Facility Loans (which shall, unless otherwise agreed by the Administrative Agent, may be not less than ten Business Days after the date part of such notice is deliveredexisting Class) or commitments to make revolving loans with pricing and/or amortization terms different from all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
, (i) the any Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by the same Collateral (or junior in right of payment and no additional collateral) securing the then of security with each existing Obligations;
Class of Loans, (ii) (A) the Maturity Date final maturity date of any Incremental Term Loans shall be no earlier than 91 days after the then Latest Revolving Facility Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) [reserved], (iv) the Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Loans, (v) the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date and the matters addressed by clause (iv) above, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans and (Bvii) the Weighted Average Life to Maturity Incremental Term Loans and Other Incremental Revolving Loans shall be denominated in Dollars and borrowed by the Borrower. Each of the parties hereto hereby agrees that, (i) upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided in Section 10.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Restatement Effective Date and such additional customary documents and filings (including amendments to the Vessel Mortgages and other Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date (provided that, to the extent such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, at the Borrower's election, the date of determination of Pro Forma Compliance shall be deemed to be the date the definitive agreements for such Permitted Business Acquisition or such other acquisition that is permitted by this Agreement are entered into).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such L▇▇▇▇▇’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the later of (x) the Term Facility Maturity Date in effect on the date of incurrence for the Class of Term Loans to which such offer relate and (y) 91 days after the Revolving Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same to which such offer relates, (iv) except as to interest rates, optional prepayment provisions fees and fees final maturity and the matters addressed by Section 2.21(b)(iv) (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans which shall be on terms and pursuant to documentation to be determined by the Borrower and set forth in the Lenders providing such Incremental Term Loan; provided thatPro Rata Extension Offer), the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Extended Revolving Facility Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; have (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether same terms as the existing Revolving Facility Commitments or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect have such other terms as shall be reasonably satisfactory to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon , and (v) any increase of any existing Class of Extended Term Loans, the Lenders shall take any action as Loans and/or Extended Revolving Facility Commitments may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in accordance any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the respective Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Class held Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended Revolving Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more tranches of term loans (including one or more “term loan B” tranches) under this Agreement (“Refinancing Term Loans”), the Net Proceeds of which are used to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), so long as (i) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof plus amounts used to pay fees and expenses, (ii) if the Revolving Facility Credit Exposure outstanding on the Refinancing Effective Date would exceed the aggregate amount of Revolving Facility Commitments outstanding in each Lender.case after giving effect to the termination of such Revolving Facility Commitments, the Borrower shall take one or more actions such that such Revolving Facility Credit Exposure does not exceed such aggregate amount of Revolving Facility Commitments in effect on the Refinancing Effective Da
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (1a) The Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, in an aggregate amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice 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 and minimum increments of $10,000,000, 25,000,000 or equal to the then-remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the date on which such Incremental Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loans to be borrowed pursuant to Loan Commitment, whether such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans A-1 Loan Commitments, Term A-2 Loan Commitments or a new Class of commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (iii“Other Term Loans”) and (iv) in the date on which case of any Incremental Revolving Facility Commitment, whether such Incremental Term Loan Revolving Facility Commitments are requested to become effective be additional USD Revolving Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or other terms different from the Revolving Facility Loans (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent applicable Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided provided, that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term A-2 Facility Maturity Date; provided that at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the Term A-2 Facility Maturity Date and but no earlier than the Term A-1 Facility Maturity Date;
(Bii) the Weighted Average Life to Maturity final maturity date of any Incremental Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date;
(iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of the Term A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the Term A-2 Loans but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility (or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Toggle Test, the Leverage Ratio Toggle Test shall be deemed to have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental USD Revolving Facility incurred at any time after the Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, unless the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental USD Revolving Facility and the all-in yield on the USD Revolving Facility minus 0.50% and the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the USD Revolving Facility;
(B) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Multicurrency Revolving Facility incurred at any time after the Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Multicurrency Revolving Facility, unless the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Multicurrency Revolving Facility and the all-in yield on the Multicurrency Revolving Facility minus 0.50% and the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Multicurrency Revolving Facility;
(viii) Incremental Term Facilities may rank pari passu in right of security with, or junior in right of security to, the other Facilities (but shall in any case be secured (and, in the case of any Incremental Term Facilities ranking junior in right of security to the other Facilities, shall be subject to customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the applicable Borrower), except during a Collateral Suspension Period, when Incremental Term Facilities shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Facilities, in which case, such applicable Incremental Term Facility will be established as a separate facility from the then outstanding Class of existing Term Loans;
(iiiix) no to the extent any Incremental Term Loan Facility is structured as an incremental term “b” facility, the applicable Borrower and the Incremental Lenders providing such Incremental Term Facility may agree to add excess cash flow mandatory prepayment provisions for the ratable benefit of the lenders of such tranche of incremental term “b” loans and all other outstanding tranches of Term Loans (provided that any such excess cash flow mandatory prepayment provisions shall participate automatically cease to be operative on a greater than pro rata basis and after the date that all such incremental term “b” loans are repaid in full) and/or to eliminate any Financial Covenant; and
(x) the other terms and documentation in respect of any Incremental Facility (including, without limitation, as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (if any)), to the extent not consistent with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans Facilities, shall have such interest rates, optional prepayment provisions and fees be as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided Facility (but in any case subject to the specific limitations and requirements set forth above). Each of the parties hereto hereby agrees that, upon the terms applicable to effectiveness of any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notAssumption Agreement, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby as provided for in Section 11.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable Borrower’s consent (not to be unreasonably withheld), and furnished to the other parties hereto, it being understood that this such Incremental Assumption Agreement is amended (which shall not require may, without the consent of any Lender) Lender (other than the applicable Incremental Lenders), effect such amendments to incorporate such more restrictive provisions for this Agreement or any other Loan Document as may be necessary or appropriate, in the benefit opinion of the then existing Lenders); andAdministrative Agent, to effect the provisions of this Section 2.15.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.15 unless (wi) on the date of such effectiveness, the condition set forth in paragraph (b) of Section 5.05 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the applicable Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Restatement Date under Section 6 of the Restatement Agreement and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Incremental Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement in accordance with clause (b)(viii) above, junior to) the existing Loans; and (iii) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds be continuing or would result therefrom; provided, to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, (x) the conditions set forth in clauses absence of the existence of any Default or Event of Default (aother than an Event of Default under Section 8.01(b), (c), (h) or (i)) shall not be a condition to the incurrence of such Incremental Facility and (by) the foregoing clause (i) shall be limited, to the extent agreed with the Incremental Lender(s) providing such Incremental Facility, to customary “specified representations” and those representations of Section 5.02 the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Business Acquisition or Material Investment that are satisfied whether or not a Credit Extension is made on such date (and, material to the interests of the Lenders and only to the extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a breach of such date, clause representations (cthe “Incremental Facilities Specified Representations”).
(d) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans and Other Revolving Loans) in the form of additional Term A-1 Loans, Term A-2 Loans, USD Revolving Facility Loans or Multicurrency Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding Term A-1 Loans, Term A-2 Loans, USD Revolving Facility Loans or Multicurrency Revolving Facility Loans, as applicable, on a pro rata basis. The applicable Borrower agrees that Section 3.05 shall apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Sources: Restatement Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 after the First Amendment Effective Date from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
: (i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
; (ii) )
(A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
; (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
; (iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
; (v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.Incremental
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Incremental Commitments. (1a) The Company (for and on behalf of itself, or in its capacity as Borrower Representative on behalf of any other Borrower, as applicable) may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Advances and/or Incremental Revolving Credit Advances, as the case may be, in their sole discretion (such Lendersdiscretion; provided, the “that each Incremental Term Loan Lenders”)Lender and/or Incremental Revolving Lender (which is not an existing Lender) shall be subject to the approval requirements of Section 9.07. Such notice AMERICAS/2024254939.6 77 Sealed Air – 4th A&R Syndicated Facility Agt shall set forth (iA) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iiiB) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (C) (i) whether such Incremental Term Commitments are to be not less than ten Business Days after commitments to make term advances with pricing and/or amortization terms different from the date then-outstanding Term Advances (“Other Term Advances”) and/or (ii) whether such notice is deliveredIncremental Revolving Credit Commitments are to be Revolving Credit Commitments or commitments to make revolving advances with pricing and/or amortization terms different from the then-outstanding Revolving Credit Advances (“Other Revolving Credit Advances”).
(2b) The applicable Borrower and such other Loan Parties, the Administrative Agent Parties as may be required with respect to such Incremental Term Commitment or Incremental Revolving Credit Commitment and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably specify to evidence the Incremental Term Loan Commitmentrequest. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the Incremental Term Advances and/or Incremental Revolving Credit Advances to be made thereunder, and shall be made (x) on terms and conditions agreed to by the applicable Borrower and the applicable Incremental Term LoansLenders, and in a form that is reasonably acceptable to the Agent; provided that:
provided, that (i) the Incremental Other Term Loans Advances and Other Revolving Credit Advances shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by in right of payment and of security with the same Collateral (Term Advances and no additional collateral) securing the then existing Obligations;
Revolving Credit Advances, as applicable, (ii) the final maturity date of (A) the Maturity Date of any Incremental Other Term Loans Advances shall be no earlier than the then Latest Maturity Scheduled Term Loan Termination Date and (B) any Other Revolving Credit Advances shall be no earlier than the Weighted Average Life scheduled Termination Date applicable to Maturity the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Incremental Other Term Loans Advances shall be no shorter than the longest remaining Weighted Average Life weighted average life to Maturity maturity of any then Term Facility outstanding Class immediately prior to the execution and delivery of Term Loans;
(iii) no such Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
Assumption Agreement, (iv) Incremental Term Loans the Other Revolving Credit Advances shall have such interest rates, optional prepayment provisions require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”) and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to no Default (except in the aboveconnection with a Limited Condition Acquisition, any Incremental Term Loans in which case this requirement shall be on terms that no Specified Event of Default shall have occurred and pursuant to documentation to be determined by the Borrower and the Lenders providing continuing or would result from such Incremental Term Loan; provided that, the terms applicable to any Advance and/or Incremental Revolving Credit Advance) shall have occurred and be continuing or would result from such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andAdvances and/or Incremental Revolving Credit Advances.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.01(b) 2.04 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment effectiveness, the representations and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions warranties set forth in clauses Section 4.01 shall be true and correct (a) and (b) in the case of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andLimited Condition Acquisition, only to the extent required under Section 1.14) and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a Borrowing is made certificate to that effect dated such date and executed by a Responsible Officer of the applicable Borrower, (ii) the Agent shall have received (or waived, in accordance with the terms of the relevant Incremental Assumption Agreement) legal opinions, board AMERICAS/2024254939.6 78 Sealed Air – 4th A&R Syndicated Facility Agt resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 3.01 and such dateadditional documents and filings (including amendments to the Collateral Documents) as the Agent may reasonably require to assure that the Incremental Term Advances and/or Incremental Revolving Credit Advances are secured by the Collateral ratably with the existing Term Advances and Revolving Credit Advances, clause and (ciii) is required subject to Section 1.14, the Borrowers would be complied with); (yin Pro Forma Compliance, calculated as of the last day of the most recently ended fiscal quarter for which financial statements delivered under Section 5.01(a)(i) are available, determined on a Pro Forma Basis, Basis giving effect to such Incremental Term Loans Commitment and/or Incremental Revolving Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the incurrence Advances to be made thereunder and the application of Indebtedness thereunder (assuming that such commitments are fully drawn the proceeds therefrom as if made and applied on such date.
(d) and use Each of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) parties hereto hereby agrees that the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably required by the Administrative Agent necessary to ensure that the Borrowings all Incremental Term Advances and/or Incremental Revolving Credit Advances (other than Other Term Advances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of such Class are held by the Lenders of such Class outstanding Term Advances or Revolving Credit Advances on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderbasis.
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Revolving Facility Loan Maturity Date, request that the Incremental Term Loan Commitments not to exceed $100,000,000 from Amount be provided by one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Revolving Facility Commitments in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Revolving Facility Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) whether such Incremental Revolving Loan Commitments are to be not less than ten Business Days after Revolving Facility Commitments or commitments to make revolving loans with pricing terms different from the date such notice is deliveredRevolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentRevolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansRevolving Facility Commitments; provided that:
provided, that (i) the Incremental Term Other Revolving Loans shall not be guaranteed by any Subsidiaries have the same guarantees as and rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the existing Loans same terms as the Revolving Facility Loans, as applicable, and (y) intercreditor arrangements and such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (Administrative Agent and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date final maturity date of any Incremental Term Other Revolving Loans shall be no earlier than the then Latest Revolving Facility Loan Maturity Date and (B) Date. Each of the Weighted Average Life to Maturity parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loans Assumption Agreement, this Agreement shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, both before and after such effectiveness, (x) there is no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a the Borrower shall be in Pro Forma BasisCompliance, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iii) the Administrative Agent shall have received customary legal opinions opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Original Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Revolving Facility Loans in respect of any the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Class Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender or any other person selected by the Borrower which becomes a Lender by signing an Incremental Assumption Agreement (but it being understood that no such existing Lender shall will be required under any obligation to participate in provide any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonCommitment or Incremental Revolving Facility Commitment)) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $10,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredRevolving Facility Loans (“Other Revolving Loans”).;
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso and the proviso to clause (v) below), be determined by the Borrower and the Incremental Term Lenders or Incremental Revolving Lenders in their sole discretion), the Incremental Term Loans shall not be guaranteed by any Subsidiaries of have (x) substantially identical terms as the Borrower that do not guarantee the existing Loans and Revolving Facility or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term Loans shall be no earlier than the then Latest Revolving Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term the Revolving Facility Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) Incremental Term Loans shall have such interest ratesexcept as to pricing, optional prepayment provisions amortization and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower final maturity date (except that any Incremental Term Loans forming an addition which shall, subject to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
clause (v) subject to the aboveof this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loan; provided that, Loans in the terms initial primary syndication thereof) in respect of any Other Revolving Loans or Incremental Term Loans shall be the same as that applicable to the Revolving Facility Loans; except that the interest rate margin in respect of any such Other Revolving Loans or Incremental Term Loans (except as expressly permitted above and except which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loans in the initial primary syndication thereof) may exceed the Applicable Margin for covenants the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or other provisions applicable only similar fees or original issue discount payable to periods after all Lenders providing the then Latest Maturity Date) are notRevolving Facility Loans or Incremental Term Loans in the initial primary syndication thereof), taken as a wholerespectively, materially by no more restrictive than ¼ of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as interest rates in a manner reasonably determined by the Borrower Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (except which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Facility Commitments in the initial primary syndication thereof), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Revolving Loans or Incremental Term Loans, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Revolving Loans or Incremental Term Loans in the initial primary syndication thereof), is no more than ¼ of 1% higher than the Applicable Margin for the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Facility Commitments in the initial primary syndication thereof). 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 amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist have occurred and be continuing or would result therefrom and (ii) the Borrower shall be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, borrowers, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, borrowers, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Term B Loans or shall be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) other than with respect to an aggregate principal amount at any time outstanding not to exceed the Maturity Date Limitation Excluded Amount, the final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (Bx) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) other than with respect to an aggregate principal amount at any time outstanding not to exceed the Maturity Limitation Excluded Amount, the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans shall rank pari passu in right of security with the Initial Revolving Loans or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or shall be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan incurred prior to the twelve month anniversary of the Fourth Restatement Effective Date that ranks pari passu in right of security with the Term B Loans (other than Other Term Loans which constitute MFN Excluded Loans), the All-in Yield shall be the same as that applicable to the Term B Loans on the Fourth Restatement Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Fourth Restatement Effective Date by no more than 0.75%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Class the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iiiviii) no with respect to the incurrence of any Incremental Term Loan Revolving Loans or any Other Revolving Loans, the Borrowers shall be in compliance with the Financial Covenant on a Pro Forma Basis;
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis with or a less than pro rata basis (but not a greater than pro rata basis) than the then outstanding Term B Loans in any mandatory prepaymentprepayment hereunder;
(ivx) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable no obligor in respect of any Incremental Term Loan Commitments and the Borrower (except or Incremental Revolving Facility Commitments that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);is not a Loan Party; and
(vxi) subject to the above, any Incremental Other Revolving Loans and Other Term Loans shall be on terms denominated in U.S. Dollars and pursuant to documentation to be determined borrowed by the Borrower and Borrowers; Each party hereto hereby agrees that upon the Lenders providing such effectiveness of any Incremental Term Loan; provided thatAssumption Agreement, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect such effectiveness, to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (ab) and (bc) of Section 5.02 are 4.01 shall be satisfied whether or not (subject to Section 1.07 for a Credit Extension is made on Limited Condition Acquisition) and the Administrative Agent shall have received a certificate to that effect dated such date (and, only to and executed by a Responsible Officer of the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 Borrowers and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon , consistent with those delivered on the Fourth Restatement Effective Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, if secured, are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans and with respect to any increase Other Term Loans to be incurred by a Foreign Subsidiary, such other collateral and guarantee documentation with respect to any Foreign Subsidiary or any asset of any existing Class Foreign Subsidiaries as the Administrative Agent may reasonably request to implement the collateral and guarantee arrangements contemplated by this Section 2.21 with respect thereto).
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan or Extended Revolving Facility Commitment, as applicable, shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall
Appears in 1 contract
Sources: First Lien Credit Agreement (Zurn Water Solutions Corp)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $10.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 50.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇-▇ Loan Commitments, Term B-3 Loan Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the date such notice is deliveredTerm B-1 Loans, Term B-2 Loans or Term B-3 Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) except as to interest rates, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B-1 Loans, Term B-2 Loans and or Term B-3 Loans, as applicable, or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental , Term Loan shall participate on a greater than pro rata basis with the then outstanding B-2 Loans or Term B-3 Loans in any mandatory prepayment;
and (iv) any Incremental Term Loans Revolving Loan Commitment shall have such interest ratesbe a Revolving Loan Commitment with the same terms as the Revolving Facility Loans. Each of the parties hereto hereby agrees that, optional prepayment provisions upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, no Default or Event of Default shall exist have occurred and be continuing or would result therefrom, (ii) the Borrower shall be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date and (iii) after giving effect to the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to any Loans under such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments on the date of such effectiveness such Loans shall constitute Obligations that are secured by the Collateral and such incurrence shall not result in a reduction in the incurrence outstanding amount of Indebtedness thereunder Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes.
(assuming d) Each of the parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B-1 Loans, Term B-2 Loans or Term B-3 Loans, when originally made, are included in each Borrowing of outstanding Term B-1 Loans, Term B-2 Loans or Term B-3 Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approvals shall not be unreasonably withheld or delayed), in each case, unless such Lenders, Incremental Revolving Facility Lender is a Revolving Facility Lender prior to the “establishment of such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum aggregate amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans on the date such notice is deliveredsame terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the Incremental same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligations;below),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), such Incremental Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term B Facility Maturity Date (this clause (vii), the “MFN Provision”);
(viii) (A) such Incremental Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (except as expressly permitted above and except for covenants or other provisions applicable only to periods after but not a greater than pro rata basis) (and, in the then Latest Maturity Datecase of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Term B Loans, on a junior basis) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viA) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of any existing Class of Term Loanssuch amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the Lenders shall relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Lender.Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term L
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (1a) The Except during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable in an amount (following the Amendment No. 1 Effective Date) not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in Section 1.07 and provided that the determination of the Incremental Amount for Incremental Loans that are delayed draw term loans may be made either (x) at the time of the establishment of such Incremental Loan commitment hereunder (assuming that such Incremental Loan was fully drawn) or (y) at the time of such delayed draw funding; provided, that in the case of the foregoing clause (y), no such Incremental Loan commitments shall be included in any determination of “Required Lenders” (or any similar determination) until the time of such delayed draw funding) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative AgentAgent (which approval shall not be unreasonably withheld, conditioned or delayed)), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Term Loan CommitmentLender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have (A) the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Incremental Revolving Facility Lenders, no consent shall be required from Revolving Facility Lenders to the extent that such term is (a) also added for the benefit of the Revolving Facility Lenders or (b) is only applicable after the Initial Revolving Facility Maturity Date),
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Borrower, shall (A) rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to a Permitted Junior Intercreditor Agreement) or (B) be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the then Latest Initial Term Facility Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Person appointed by the Borrower to arrange such Other Incremental Term Loans (the “Incremental Arranger”) in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Facility Maturity Date,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate in any then outstanding mandatory prepayment of Loans on a pro rata basis (subject to the exceptions set forth in Section 2.10(b)), a less than pro rata basis or solely to the same extent that any existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans as a result of such other existing Class of Term Loans agreeing to participate on a less than pro rata basis, on a greater than pro rata basis to such other Loans, than the then outstanding Term Loans in any mandatory prepayment;prepayment hereunder (and, for the avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)),
(ivvii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary or advisable to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e), including, for the avoidance of doubt, to the extent applicable, to (x) provide that the Lenders providing any Permitted Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenants and be included in the “Required Lenders); and” and (y) make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.061.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi)
(i) the Borrower shall be in compliance with the Standard Financial Covenants (or, in the case of any Incremental Revolving Facility Commitments incurred in connection with Amendment No. 4, the Minimum Liquidity Covenant, the Interest Coverage Ratio Financial Covenant and the Covenant Relief Secured Net Leverage Ratio Financial Covenant); (ii)
(ii) no Default or Event of Default (or, in the event that the tranche of Incremental Loans is used to finance a Limited Condition Transaction and to the extent the Lenders participating in such tranche of Incremental Loans, as applicable, agree, no Event of Default under Sections 7.01(b), (c), (h) or (i)) shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromexist; (xiii)
(iii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or any Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (iii) shall be limited to the Specified Representations and in the case of any Limited Condition Acquisition (bother than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziv)
(iv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon Agent or with respect to any increase of any existing Class of Other Incremental Term Loans, the Lenders Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding the restriction on the ability of such Class are held by the Lenders of such Class on a pro rata basis Borrower to request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments under Section 2.21(a) during the Covenant Relief Period, the Borrower may request up to $25,000,000 in accordance Incremental Revolving Facility Commitments in connection with the respective amount of Term Loans of such Class held by each LenderAmendment No. 4.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Westrock Coffee Co)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent (the “Incremental Request Notice”) from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount, in the aggregate, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent of the Administrative Agent would be required for an assignment to such Lendersperson pursuant to Section 9.04(b)(i)(B) and (y) the L/C Issuer and the Swingline Lender (which approval shall not be unreasonably withheld) unless no consent of the L/C Issuer and the Swingline Lender would be required for an assignment to such person pursuant to Section 9.04(b)(i)(C); provided, the “further, that any existing Lender approached to provide all or a portion of such Incremental Term Loan Lenders”)Commitments and/or Incremental Revolving Facility Commitments may elect or decline, in its sole discretion, to provide such Commitments. Such notice The Incremental Request Notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term B Loan Commitments (the date “Incremental Term B Loan Commitment”) or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term B Loan or Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term B Loan or Other Term Loans shall not be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the existing Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, and (iv) Incremental Term Loans except as to pricing (which shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) until the date that is eighteen (18) months after the Closing Date, in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan; provided thatB Loans or Other Term Loans is greater than the Applicable Margin for the existing Term B Loans by more than 50 basis points, then the terms applicable Applicable Margin for the existing Term B Loans shall be increased to any such the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term B Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, Other Term Loans is 50 basis points higher than the terms Applicable Margin for the existing Term B Loans; provided, further, that in determining the Applicable Margin applicable to the then outstanding Commitments existing Term B Loans and the Incremental Term B Loans or Other Term Loans, as reasonably determined (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term B Loans or the Incremental Term B Loans or Other Term Loans, in the primary syndication thereof shall be included (except with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) if the ABR or Eurocurrency Rate “floor” for the Incremental Term B Loans or Other Term Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such floor for the Incremental Term B Loans or Other Term Loans and the existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of this clause (v). 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 amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(g); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (w) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing or would result therefrom.
(d) Each of the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or, in the case of such Class are held by the Lenders Incremental Term Loans only, junior in right of such Class on a pro rata basis in accordance payment and of security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans.
Appears in 1 contract
Incremental Commitments. (1a) The Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Commitments either, at the election of the Borrowers, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrowers under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans or the Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not be guaranteed by any materially less favorable to the Borrowers and their Subsidiaries of than, the Borrower that do not guarantee terms and conditions, taken as a whole, applicable to the existing Term B Loans and the Term B-1 Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrowers) or (z) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term B Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower Term B-1 Loans (except that without giving effect to any Incremental amortization or prepayments on the Term B Loans, the Term B-1 Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of or Other Term Loans);,
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest latest Revolving Facility Maturity DateDate existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Initial Revolving Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the Borrowers), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as reasonably determined in good faith by the Borrower Borrowers) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that (wa) is a Dollar denominated term loan, (b) is incurred prior to the twelve-montheighteen-month anniversary of the Closing Date, (x) has an outside maturity date less than one year after the latest maturity date of the initial Term B Loans, (y) is not incurred in connection with a Permitted Business Acquisition or any other acquisition or Investment that is not prohibited by this Agreement2020 Incremental Effective Date and (zc) ranks pari passu in right of security with the Term BB-1 Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of suchthe Term BB-1 Loans on the Closing2020 Incremental Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term BB-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term BB-1 Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term BB-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term BB-1 Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) no Default or Event of Default shall exist giving pro forma effect to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of a Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Borrowers) or (i) (with respect to the Borrowers) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.this Section
Appears in 1 contract
Sources: Incremental Assumption Agreement (Caesars Entertainment, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Facility Commitments either, at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrower under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans or Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term BB-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term BB-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that do not guarantee are customary for “high yield” securities (as determined in good faith by the existing Loans and Borrower) or (z) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term BB-1 Facility Maturity Date and in effect on the date of incurrence (Bprovided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term BB-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term BB-1 Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term BB-1 Loans or Other Term Loans;
) (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
provided that this clause (iv) Incremental shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between BB-1 Facility Maturity Date in effect on the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class date of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loansincurrence);,
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest Revolving Facility Maturity DateDate with respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Initial Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably determined satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (xw) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower and, (yx) ranks pari passu in right of security with the Term BB-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term BB-1 Loans on the ClosingSecond Amendment Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term BB-1 Loans on the ClosingSecond Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term BB-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term BB-1 Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term BB-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term BB-1 Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) to the extent required by the relevant Incremental Assumption Agreement, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder be continuing or would result therefrom and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Administrative Agent. Upon any increase Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) On the date of the making of any existing Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the Lenders contrary set forth in Section 2.07 orý Section ý2.13, such Incremental Term Loans shall take any action be added to (and constitute a part of, be of the same Type as may be reasonably required by and, at the Administrative Agent to ensure that election of the Borrowings Borrower, have the same Interest Period as) each Borrowing of such Class are held by the Lenders outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in accordance with the respective amount each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurocurrency Loans of the relevant Class held and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender.”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such exten
Appears in 1 contract
Sources: Incremental Assumption Agreement and Second Amendment to Credit Agreement (Playtika Holding Corp.)
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Banks (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, and (which shall, unless otherwise agreed by iii) in the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the case of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms customary (in the good faith judgment of the Borrower) for term A loans (“Incremental Term A Loans”) or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms customary (in the good faith judgment of the Borrower) for term B loans or otherwise that the Borrower elects to classify as Incremental Term B Loans pursuant to this clause (dy) shall specify the terms of the applicable (“Incremental Term B Loans; provided that:
(i) ”). Notwithstanding anything herein to the Incremental Term Loans contrary, no Lender shall not be guaranteed by have any Subsidiaries of the Borrower that obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do not guarantee the existing Loans and so shall be secured on a pari passu basis by in the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings sole discretion of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender and each Incremental Term Loan Lenders”)Lender shall be subject to the approval of the Administrative Agent to the extent the same would be required for an assignment under Section 9.04. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,0005,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after the date such notice is delivered(x) commitments to make term loans with terms identical to a certain Class of existing Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from all then-existing Term Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term Loans and/or additional Initial Revolving Loans of a particular Class shall not be guaranteed by any Subsidiaries have the same terms as the Term Loans or Initial Revolving Loans, respectively of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;applicable Class,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Facilities,
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term Loan Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that Incremental Revolving Facilities shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the existing Revolving Facilities,
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21, the All-in Yield shall be the same as that applicable to the Initial Delayed Draw Term Loan Facility, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Initial Delayed Draw Term Loan Facility by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Initial Delayed Draw Term Loan Facility shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the Initial Delayed Draw Term Loan Facility shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Initial Delayed Draw Term Loan Facility then outstanding Commitments outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and Loans, as reasonably determined by (y) any Borrowing at the Borrower time such Borrowing is made and (except to B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the extent that this Agreement is amended (which shall not require the consent of Term Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title date-down and modification endorsements, which, in the case of any such amendments and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with the Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii), (iii) and (vi) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect t
Appears in 1 contract
Sources: Credit Agreement (Sun Country Airlines Holdings, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred prior to the twelve month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding Commitments outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and Loans, as reasonably determined by (y) any Borrowing at the Borrower time such Borrowing is made and (except to B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viix) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment and the incurrence or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Indebtedness thereunder and use of proceeds therefrom; Default under Section 7.01(b), (xc), (h) the conditions set forth in clauses or (ai) shall have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, such terms as shall be reasonably satisfactory to such Issuing Bank or Swingline Lender, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving
Appears in 1 contract
Sources: First Lien Credit Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments Commitments, in order to fund a Designated Acquisition, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but Lender; provided that no such existing Lender shall be required obligated to participate in provide any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonCommitments unless it so agrees) willing to provide such Incremental Term Loans Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent)requested, (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be not less than ten Business Days after Term B Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that with respect to Incremental Term Loans; provided that:
, (iA) the Incremental Other Term Loans shall not be rank pari passu or junior in right of payment and of security with (including being guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans same Guarantors and shall be being secured on a pari passu or junior basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (Aas) the Maturity Date Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteria) be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Term Loans (which shall be calculated to be the sum of (I) the Applicable Margin then in effect for Term SOFR Loans increased by the amount that any interest rate “floor” applicable to such Term SOFR Loans on such date would exceed Adjusted Term SOFR for a three-month Interest Period commencing on such date plus (II) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (B) the final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (BC) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (except that A) above, the initial yield on any Incremental Term Loans forming an addition to an existing Class of Term Loans Loan Commitment shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and Administrative Agent to be equal to the Lenders providing such sum of (x) the interest rate margin above Adjusted Term SOFR for loans under the Incremental Term Loan; provided that, Loan Commitment that bear interest based on Adjusted Term SOFR (which shall be increased by the terms amount that any interest rate “floor” applicable to any such Incremental Term Loans on the date such Incremental Term Loans are made would exceed Adjusted Term SOFR for a three month Interest Period commencing on such date) and (except as expressly permitted above and except y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for covenants doing so (the amount of such discount or other provisions applicable only to periods after the then Latest Maturity Date) are notfee, taken expressed as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit percentage of the then existing LendersIncremental Term Loan Commitment, being referred to herein as “OID”); and, the amount of such OID divided by four.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.12 unless (wi) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be Continuing or would result therefrom and (biv) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only there shall have been paid to the extent a Borrowing is made on such dateAdministrative Agent, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and for the incurrence account of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions the Lenders (including any Person becoming a Lender as to part of such matters Incremental Assumption Agreement on the related Increased Amount Date), as applicable, all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are reasonably requested by due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro-rata basis. Section 3.05 shall not apply to any conversion of Term SOFR Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make an Incremental Term Loan to the Borrower in a principal amount equal to such Class are held by Incremental Commitment, and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderother Loan Documents.
Appears in 1 contract
Sources: Exchange First Lien Loan Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender or a lender in respect of the Existing Revolving Facility Loans. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, (x) such lesser amount approved by the Administrative AgentAgent or (y) in the case of Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments established pursuant to clause (ii) of or (iv) of the definition of “Incremental Amount”, any amount thereof), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by that such Incremental Revolving Facility Commitments are to be commitments to make Revolving Facility Loans (including whether such Incremental Revolving Facility Commitments shall constitute Super-Priority Obligations) and whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date Term B Loans (including whether such notice is deliveredIncremental Term Loans shall constitute Super-Priority Obligations) (“Other Term Loans”); provided that any Incremental Term Loan Commitments that rank pari passu in right of security with the Term B Loans and are incurred pursuant to clause (ii) of the definition of “Incremental Amount” shall consist of additional Term B Loans.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that (1) if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below and (2) if such Incremental Term Loans rank pari passu in right of security with the Term B Loans, such Incremental Term Loans shall, as designated by the Borrower, either have priority under the Priority Waterfall or not have priority under the Priority Waterfall, (iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rateswhich shall, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided thatLenders in their sole discretion), the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; have (x) substantially similar terms as the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether Term B Loans or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder other terms (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions including as to such matters guarantees and collateral) as are shall be reasonably requested by satisfactory to the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.,
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 5.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower that do not guarantee and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing Loans and at the time of incurrence of such additional Term Facility), or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term Facility Maturity Date and in effect on the date of incurrence,
(Biv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term B Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of or Other Term Loans);,
(v) except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveclause (vi) and (vii) of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing such Incremental Term Loan; provided thatin their sole discretion), the Other Revolving Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to any such Incremental Term the Initial Revolving Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest latest Revolving Facility Maturity DateDate existing at the time of incurrence of such Incremental Revolving Facility Commitments) are not, taken or (y) such other terms as a whole, materially more restrictive shall be reasonably satisfactory to the Borrower and its Restricted SubsidiariesAdministrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the terms Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then outstanding Commitments and Loansthe Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, as reasonably determined by the Borrower (except Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) no Default or Event of Default shall exist giving pro forma effect to such the extent required by the relevant Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) Assumption Agreement, the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to of Section 4.01 shall be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans satisfied and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Term Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such Extended Term Loan), or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates (without giving effect to any amortization or prepayments on such Class of Term Loans), (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Revolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Extended Revolving Facility Commitments) or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be
Appears in 1 contract
Incremental Commitments. (1a) The AfterExcept during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable in an amount (following the Amendment No. 1 Effective Date) not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in Section 1.07 and provided that the determination of the Incremental Amount for Incremental Loans that are delayed draw term loans may be made either (x) at the time of the establishment of such Incremental Loan commitment hereunder (assuming that such Incremental Loan was fully drawn) or (y) at the time of such delayed draw funding; provided, that in the case of the foregoing clause (y), no such Incremental Loan commitments shall be included in any determination of “Required Lenders” (or any similar determination) until the time of such delayed draw funding) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative AgentAgent (which approval shall not be unreasonably withheld, conditioned or delayed)), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Term Loan CommitmentLender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have (A) the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments or (B) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Incremental Revolving Facility Lenders, no consent shall be required from Revolving Facility Lenders to the extent that such term is (a) also added for the benefit of the Revolving Facility Lenders or (b) is only applicable after the Initial Revolving Facility Maturity Date),
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Borrower, shall (A) rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to a Permitted Junior Intercreditor Agreement) or (B) be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the then Latest Initial Term Facility Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Person appointed by the Borrower to arrange such Other Incremental Term Loans (the “Incremental Arranger”) in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Facility Maturity Date,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate in any then outstanding mandatory prepayment of Loans on a pro rata basis (subject to the exceptions set forth in Section 2.10(b)), a less than pro rata basis or solely to the same extent that any existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans as a result of such other existing Class of Term Loans agreeing to participate on a less than pro rata basis, on a greater than pro rata basis to such other Loans, than the then outstanding Term Loans in any mandatory prepayment;prepayment hereunder (and, for the avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)),
(ivvii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of the Borrower or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary or advisable to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e), including, for the avoidance of doubt, to the extent applicable, to (x) provide that the Lenders providing any Permitted Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenants and be included in the “Required Lenders); and” and (y) make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.061.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) the Borrower shall be in compliance with the Standard Financial Covenants; (ii) no Default or Event of Default (or, in the event that the tranche of Incremental Loans is used to finance a Limited Condition Transaction and to the extent the Lenders participating in such tranche of Incremental Loans, as applicable, agree, no Event of Default under Sections 7.01(b), (c), (h) or (i)) shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromexist; (xiii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or any Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (iii) shall be limited to the Specified Representations and in the case of any Limited Condition Acquisition (bother than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon Agent or with respect to any increase of any existing Class of Other Incremental Term Loans, the Lenders Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount (other than with respect to the Term B Loans constituting Acquisition Loans) not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Facility Loans (which shallmay be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), unless otherwise agreed by and (iv) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with pricing and amortization terms identical to the date Term A Loans (which may be part of such notice is deliveredexisting Class) or commitments to make term loans with pricing and amortization terms different from the Term A Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by the same Collateral (or junior in right of payment and no additional collateral) securing the then of security with each existing Obligations;
Class of Loans, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as the Term A Loans; provided that, with the consent of the Borrower, the Incremental Assumption Agreement with respect to any Other Incremental Term Loans constituting Acquisition Loans may provide for (A) additional mandatory prepayment requirements so long as any such additional mandatory prepayment requirement applies on at least a pro rata basis to all then outstanding Classes of Term Loans and/or (B) an additional co-borrower incorporated or organized in the Weighted Average Life United States that is a wholly owned Subsidiary of the Borrower (provided that such co-borrower shall sign a joinder to Maturity this Agreement in form reasonably satisfactory to the Administrative Agent, shall become a co-borrower of each Facility hereunder and shall be jointly and severally liable for all obligations of the Borrower hereunder) or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then the then-outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis Loans with the then outstanding Term Loans in any mandatory prepayment;
longest weighted average life to maturity, (iv) the Other Incremental Term Revolving Loans shall have such interest ratesrank pari passu in right of payment and of security with the Revolving Facility Loans, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date and the matters addressed by clause (iv) above, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the aboveAdministrative Agent, (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans and (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall be on terms denominated in Dollars and pursuant to documentation to be determined borrowed by the Borrower and Borrower; provided, further that the Lenders providing such All-in Yield in respect of any Other Incremental Term Loan; provided that, Loan and/or Other Incremental Revolving Loan incurred prior to the terms applicable to any such Incremental Term Loans date that is twelve (except as expressly permitted above and except for covenants or other provisions applicable only to periods 12) months after the then Latest Maturity Date) are not, taken Closing Date shall be the same as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms that applicable to the then outstanding Commitments and Term Loans and/or the Revolving Facility Loans; except that the All-in Yield in respect of any such Other Incremental Term Loan and/or any such Other Incremental Revolving Loan may exceed the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, as respectively, by no more than [*]% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Borrower Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such All-in Yield, the Applicable Margin with respect to each Class of Term Loans and/or Revolving Facility Loans shall be increased so that the All-in Yield in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be is no more than [*]% higher than the All-in Yield for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, (except i) upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for Section 10.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, except in the case of the Term B Loans constituting Acquisition Loans and the related Term B Loan Commitments (which Term B Loans shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) only be subject to the conditions set forth in Section 1.064.03), no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.this
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Lenders (which, in each case, which may include any existing Lender (but Lender; provided that no such existing Lender shall be required obligated to participate in provide any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonCommitments unless it so agrees) willing to provide such Incremental Term Loans Commitments in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”)own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in a minimum amount of $10,000,000 50,000,000 or, if less, the remaining Incremental Amount, and minimum increments in integral multiples of $10,000,000, or remaining permitted amount or, 10,000,000 in each case, such lesser amount approved by the Administrative Agentexcess thereof), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) whether such Incremental Commitments are to be Term B Loan Commitments, unless otherwise agreed by Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansCommitments; provided that:
that (i) Revolving Credit Commitment Increases shall have the same terms as the existing Revolving Credit Commitments under this Agreement, (ii) with respect to Incremental Term Loans, (A) the Other Term Loans shall not be rank pari passu in right of payment and of security with (including being guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans same Guarantors and shall be being secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (Aas) the Maturity Date Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteria) be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Term Loans (which shall be calculated to be the sum of (I) the Applicable Margin then in effect for Eurodollar Rate Loans increased by the amount that any “Eurodollar floor” applicable to such Eurodollar Rate Loans on such date would exceed the Eurodollar Base Rate that would be in effect for a three-month Interest Period commencing on such date plus (II) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (B) the final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (BC) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any then outstanding Class Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the contrary. For purposes of clause (except that ii)(A) above, the initial yield on any Incremental Term Loans forming an addition to an existing Class of Term Loans Loan Commitment shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and Administrative Agent to be equal to the Lenders providing such sum of (x) the interest rate margin above the Adjusted Eurodollar Rate for loans under the Incremental Term Loan; provided that, Loan Commitment that bear interest based on the terms Adjusted Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to any such Incremental Term Loans on the date such Incremental Term Loans are made would exceed the Adjusted Eurodollar Rate that would be in effect for a three month Interest Period commencing on such date) and (except as expressly permitted above and except y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for covenants doing so (the amount of such discount or other provisions applicable only to periods after the then Latest Maturity Date) are notfee, taken expressed as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit percentage of the then existing LendersIncremental Term Loan Commitment, being referred to herein as “OID”); and, the amount of such OID divided by four.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) 2.12 unless (wi) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Credit Commitments, as applicable, (iii) no Default or Event of Default shall exist have occurred and be Continuing or would result therefrom, (iv) the Senior Secured Leverage Ratio (as established pursuant to a certificate of an Authorized Officer of the Borrower showing the Senior Secured Leverage Ratio determined in accordance with Section 7.07 as of the last day of the Fiscal Quarter most recently ended for which the financial statements required by Section 6.01(a) or (b), as the case may be, have been (or were required to be) delivered immediately prior to and after giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder Incremental Loans and use Incremental Commitments) is equal to or less than 3.00:1.00 (assuming in the case of proceeds therefrom; (x) any Revolving Credit Commitment Increase that the conditions set forth in clauses (aentire amount thereof is fully drawn) and (bv) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only there shall have been paid to the extent a Borrowing is made on such dateAdministrative Agent, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and for the incurrence account of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions the Lenders (including any Person becoming a Lender as to part of such matters Incremental Assumption Agreement on the related Increased Amount Date), as applicable, all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are reasonably requested by due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro-rata basis. Section 3.05 shall not apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make an Incremental Term Loan or provide a Revolving Credit Commitment Increase to the Borrower in a principal amount equal to such Incremental Commitment, and such Incremental Loan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
(e) Upon each Revolving Credit Commitment Increase pursuant to this Section, (i) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each existing Revolving Credit Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Class are held by Revolving Credit Commitment Increase and (ii) if, on the Lenders date of such Class Revolving Credit Commitment Increase, there are any Revolving Credit Loans outstanding, the Administrative Agent shall take those steps which it deems, in its sole discretion necessary and appropriate to result in each Revolving Credit Lender having a pro-rata share of the outstanding Revolving Credit Loans based on a each such Revolving Credit Lender’s pro rata basis share of the revolving Credit Commitments immediately after giving effect to such Revolving Credit Commitment Increase; provided that any prepayment made in connection with the taking of such steps shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the respective amount of Term Loans of such Class held by each LenderLenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (1a) The U.S. Borrower or the Dutch Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed $100,000,000 the Incremental Amount (unless constituting an Extension in accordance with clauses (e) through (i) of this Section 2.21) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Loans, as the case may be, in their sole discretion own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (such Lenders, the “Incremental Term Loan Lenders”which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $1.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25.0 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) (a) whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and/or amortization terms different from an existing Class of Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Canadian Tranche Commitments, unless otherwise agreed by European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Administrative AgentCanadian Tranche Revolving Facility Loans, be not less than ten Business Days after the date such notice is deliveredEuropean Tranche Revolving Facility Loans and U.S. Tranche Revolving Facility Loans (“Other Revolving Facility Loans”).
(2b) The Loan Parties, the Administrative Agent U.S. Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Loans to be made thereunder; provided that:
that (i) the Incremental Other Term Loans and Other Revolving Facility Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee the existing Existing Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;
Existing Term Loans, (ii) the final maturity date of (Aa) the Maturity Date of any Incremental Other Term Loans shall be no earlier than the then Latest latest Term Facility Maturity Date of any then existing Term Loans and (Bb) any Other Revolving Facility Loans shall be no earlier than the latest Revolving Facility Maturity Date then in effect; provided that any Other Revolving Facility Loans may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes (as defined in clause (a) of such definition) that mature within 91 days after such Early Maturity Test Date exceeds $200.0 million and any Other Term Loans may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes (as defined in clause (b) of such definition) that mature within 91 days after such Early Maturity Test Date exceeds $400.0 million, (iii) the Weighted Average Life weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (iv) the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the latest Revolving Facility Maturity Date then in effect; provided further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any Other Term Loan and/or Other Revolving Facility Loan shall not be greater than that applicable to the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) may exceed the Applicable Margin for the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin for the Extended Maturity Term Loans or the Committed Extended Revolving Facility Commitment, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment). 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 amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the U.S. Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Article IV 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 U.S. Borrower, (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 4.02 of the 2005 Credit Agreement and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the U.S. Borrower would be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans and/or Incremental Revolving Facility Loans (other than Other Term Loans or Other Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Facility Loans under the same Tranche on a pro rata basis, and the Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans or Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in Section 2.11(d), 2.12(a) or 2.19(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by any Borrower to all Lenders, on a pro rata basis (based on the aggregate outstanding Term Loans and Revolving Facility Commitments) and on the same terms (“Pro Rata Extension Offers”), each Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments and to otherwise modify the terms of such Lender’s Loans and/or Commitments pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, when comparing Term Loans and Revolving Facility Commitments, that the Term Loans and Revolving Facility Commitments are offered to be extended for the same amount of time (for this purpose interim amortization of the Term Loans in an annual amount of up to 1% of the original principal amount thereof shall not be taken into account) and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between a Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The applicable Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the applicable Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as a Class of existing Term Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date for the Existing Term Loans, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Existing Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) Incremental Term Loans shall have such except as to interest rates, optional prepayment provisions fees and fees final maturity, any Extended Revolving Facility Commitment shall be a Revolving Facility Commitment with the same terms as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing a Class of Term Existing Revolving Facility Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Extended Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding and/or Extended Revolving Facility Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in accordance any voluntary or mandatory repayments or prepayments or commitment reductions hereunder; provided, however, that (A) the interest rate margins for any Extended Term Loan shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to Extended Maturity Term Loans plus 1/2 of 1% (and the interest rate margins applicable to the Extended Maturity Term Loans shall be increased to the extent necessary to achieve the foregoing), (B) the interest rate margins for any Extended Revolving Facility Commitment shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Committed Extended Revolving Facility Commitment plus 1/2 of 1% (and the interest rate margins applicable to the Committed Extended Revolving Facility Commitment shall be increased to the extent necessary to achieve the foregoing) and (C) solely for purposes of the foregoing clauses (A) and (B), the interest rate margins applicable to any Extended Maturity Term Loan or Extended Revolving Facility Commitment shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Extended Term Loans or Extended Revolving Facility Commitments based on an assumed four-year life to maturity). Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the respective applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of such Class held by each Lender.the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment; provided that any tranche of Extended Term Loans or Extended R
Appears in 1 contract
Sources: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approvals shall not be unreasonably withheld or delayed), in each case, unless such Lenders, Incremental Revolving Facility Lender is a Revolving Facility Lender prior to the “establishment of such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum aggregate amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days (x) commitments to make term loans on the same terms as the 20232024 Refinancing Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from (x) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), Term B Loans and, (y) at all times on and after the date First Amendment Effective Date (after giving effect thereto), the 2023 and prior to the Second Amendment Effective Date, the 2023 Refinancing Term B Loans and (z) at all times on and after the Second Amendment Effective Date (after giving effect thereto), the 2024 Refinancing Term B Loans (such notice is deliveredterm loans at any given time, “Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional 20232024 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have the Incremental same terms as the 20232024 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the 20232024 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 20232024 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 20232024 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligations;below),
(iiiii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term Facility Maturity Date applicable to the 20232024 Refinancing Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 20232024 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the 20232024 Refinancing Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), such Incremental Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the 20232024 Refinancing Term B Loans on the FirstSecond Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such 20232024 Refinancing Term B Loans on the FirstSecond Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 20232024 Refinancing Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 20232024 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 20232024 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any such Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Term Loans Amount” and/or (except as expressly permitted above and except for covenants or other provisions applicable only to periods B) has a maturity date that is at least two (2) years after the then Latest Term Facility Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms Date applicable to the then outstanding Commitments and 20232024 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, as reasonably determined on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Borrower (except to Liens on the extent that this Agreement is amended (which shall not require Collateral securing the consent of 20232024 Refinancing Term B Loans, on a junior basis) than the 20232024 Refinancing Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viA) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) have occurred or be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of any existing Class of Term Loanssuch amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the Lenders shall relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by each Lender.implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Comm
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent (the “Incremental Request Notice”) from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount, in the aggregate, from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person▇▇▇▇▇▇) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of (x) the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent of the Administrative Agent would be required for an assignment to such Lendersperson pursuant to Section 9.04(b)(i)(B) and (y) the L/C Issuer and the Swingline Lender (which approval shall not be unreasonably withheld) unless no consent of the L/C Issuer and the Swingline Lender would be required for an assignment to such person pursuant to Section 9.04(b)(i)(C); provided, the “further, that any existing Lender approached to provide all or a portion of such Incremental Term Loan Lenders”)Commitments and/or Incremental Revolving Facility Commitments may elect or decline, in its sole discretion, to provide such Commitments. Such notice The Incremental Request Notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by and (iii) (a) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after Term A Loan Commitments (the date “Incremental Term A Loan Commitment”), Term B Loan Commitments (the “Incremental Term B Loan Commitment”) or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term A Loans or the Term B Loans (“Other Term Loans”) and/or (b) whether such notice is deliveredIncremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall not be guaranteed by any Subsidiaries of have (x) the Borrower that do not guarantee same terms as the existing Term B Loans and or (y) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Incremental Term A Loan established after the Amendment No. 3 Effective Date shall be no earlier than the 2020 Term A Facility Maturity Date and the final maturity date of any Incremental Term B Loan or Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life to Maturity of any Incremental Term Loans A Loan established after the Amendment No. 3 Effective Date shall not be no shorter than the remaining Weighted Average Life to Maturity of the existing 2020 Term A Loans and the Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term B Loan shall participate on a greater than pro rata basis with the then outstanding or Other Term Loans in any mandatory prepayment;
shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans, and (iv) Incremental Term Loans except as to pricing (which shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), the Other Revolving Loans shall not mature prior to the Latest Revolving Facility Maturity Date and shall have (x) the same terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) until the date that is eighteen (18) months after the Closing Date, in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan; provided thatB Loans or Other Term Loans is greater than the Applicable Margin for the existing Term B Loans by more than 25 basis points, then the terms applicable Applicable Margin for the existing Term B Loans shall be increased to any such the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term B Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, Other Term Loans is 25 basis points higher than the terms Applicable Margin for the existing Term B Loans; provided, further, that in determining the Applicable Margin applicable to the then outstanding Commitments existing Term B Loans and the Incremental Term B Loans or Other Term Loans, as reasonably determined (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term B Loans or the Incremental Term B Loans or Other Term Loans, in the primary syndication thereof shall be included (except with OID being equated to interest based on an assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) if the ABR or Eurocurrency Rate “floor” for the Incremental Term B Loans or Other Term Loans is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term B Loans the difference between such floor for the Incremental Term B Loans or Other Term Loans and the existing Term B Loans shall be equated to an increase in the Applicable Margin for purposes of this clause (v). 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 amended to the extent that this Agreement is amended (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(g); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (w) on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and be continuing or would result therefrom.
(d) Each of the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional 2018 Term A Loans, 2020 Term A Loans or Term B Loans, when originally made, are included in each Borrowing of outstanding 2018 Term A Loans, 2020 Term A Loans or Term B Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or junior in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Incremental Commitments. (1a) The Borrower Except during a Covenant Relief Period, the Borrowers may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Facility Loans (which shallmay be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), unless otherwise agreed by and (iv) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less commitments to make term loans with pricing (other than ten Business Days after upfront fees or original issue discount) and amortization terms identical to the date such notice is deliveredTerm A Loans, Term A-1 Loans or Term A-2 Loans (which may be part of the applicable existing Class) or commitments to make term loans with pricing and amortization terms different from the Term A Loans, Term A-1 Loans or Term A-2 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by the same Collateral (or junior in right of payment and no additional collateral) securing the then of security with each existing Obligations;
Class of Loans, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest date specified in clause (a) of the definition of Term Facility Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have (Bx) the Weighted Average Life same terms as the applicable Class of then outstanding Term Loans; provided that, with the consent of the Borrowers, the Incremental Assumption Agreement with respect to Maturity any Other Incremental Term Loans constituting Acquisition Loans may provide for additional mandatory prepayment requirements so long as any such additional mandatory prepayment requirement applies on at least a pro rata basis to all then outstanding Classes of Term Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term A Loans;
(iii) no Incremental , Term Loan shall participate on a greater than pro rata basis with the then outstanding A-1 Loans and Term Loans in any mandatory prepayment;
A-2 Loans, (iv) the Other Incremental Term Revolving Loans shall have such interest ratesrank pari passu in right of payment and of security with the Revolving Facility Loans, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date and the matters addressed by clause (iv) above, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the above Administrative Agent, (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans and (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall be on terms denominated in Dollars and pursuant to documentation to be determined borrowed by the Borrower and Borrowers. Each of the Lenders providing such Incremental Term Loan; provided parties hereto hereby agrees that, (i) upon the terms applicable to effectiveness of any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notAssumption Agreement, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for Section 10.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such additional customary documents and filings (including amendments to the Vessel Mortgages and other Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders and/or the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) one or Event more Classes of Default then-existing Term Loans and Revolving Facility Loans and (iii) the Company shall exist be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made applied on such date (andprovided that, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, at the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefromCompany's election, the Borrower would date of determination of Pro Forma Compliance shall be in compliance with Section 8.11 and deemed to be the date the definitive agreements for such Permitted Business Acquisition or such other acquisition that is permitted by this Agreement are entered into).
(zd) Each of the parties hereto hereby agrees that the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans, Term A-1 Loans or Term A-2 Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as the existing Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended Revolving Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrowers shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 in the aggregate the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, the “that each Incremental Revolving Facility Lender and Incremental Term Loan Lenders”)Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental Term Lender, such Incremental Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent)requested, (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iii) in the case of Incremental Term Loan Commitments, unless otherwise agreed by whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Incremental Other Term Loans shall not be guaranteed by any Subsidiaries rank pari passu or junior in right of payment and of security with the Borrower that do not guarantee Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the existing Loans and same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, provided that the Yield in respect of any Other Term Loans secured on a pari passu basis by with the same Collateral Term B Loans made on or prior to the date that is eighteen (and no additional collateral18) securing months after the then existing Obligations;
Closing Date shall not exceed 0.50% or more above the Yield in respect of the Term B Loans or, if it does so exceed 0.50% or more of such Yield in respect of the Term B Loans, the Applicable Margin in respect of the Term B Loans shall be increased so that the Yield in respect of such Other Term Loans is not greater than 0.50% above the Yield in respect of the Term B Loans, (ii) (A) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and Date, (Biii) the Weighted Average Life weighted average life to Maturity maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term B Loans in any mandatory prepayment;
and (iv) from and after the effectiveness of the each Incremental Term Loans Assumption Agreement, the associated Incremental Revolving Facility Commitments shall have such interest ratesthereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, optional prepayment provisions upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and fees as may be agreed between terms of the Lenders providing the applicable Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);parties hereto.
(vc) subject to Notwithstanding the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.20 unless (wi) no on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, provided that in the event that the Incremental Term Loan Commitments are used to finance a Permitted Business Acquisition, the condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall exist be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made thereunder and the incurrence application of Indebtedness thereunder the proceeds therefrom as if made and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent Lenders to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (l) of such Class are held this Section 2.20)) or any other Loan Document, pursuant to one or more offers made from time to time by the Borrower to all Lenders of such Class a particular Facility on a pro rata basis (“Extension Offers”), the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in accordance such Extension Offers to extend the maturity date of each such Lender’s Term Loans or the Synthetic L/C Commitments or Revolving Facility Commitments as applicable to each such Lender and to otherwise modify the terms of such Lender’s Term Loans, the Synthetic L/C Commitments (or Credit-Linked Deposit) or Revolving Facility Commitment pursuant to the terms of the relevant Extension Offer (including increasing the interest rate or fees and/or modifying the amortization schedule in respect thereof). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under the Credit Agreement by (i) implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”), (ii) implementing an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)) and (iii) with respect to any extension of a Synthetic L/C Maturity Date (such extended Credit-Linked Deposit, an “Extended Synthetic L/C Commitment”), deeming the Credit Agreement amended such that references to Synthetic L/C Commitments (and any related definitions and terms) shall be deemed to include the Extended Synthetic L/C Commitments where necessary to carry out the intent of this Section. The Borrower shall not be required to make Extension Offers on a pro rata basis across the Term Loans, Revolving Facility Commitments and Credit-Linked Deposits, and the Borrower shall be permitted to elect whether any such Election Offer shall apply to the Term Loans, Revolving Facility Commitments or Credit-Linked Deposits (or any combination thereof).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans, Extended Revolving Facility Commitments and/or Extended Synthetic L/C Commitments, as applicable, of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans, Extended Revolving Facility Commitments and/or Extended Synthetic L/C Commitments, as the case may be; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be later than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be longer than the remaining weighted average life to maturity of the Term B Loans, (iv) except as to interest rates, fees and final maturity, any Extended Revolving Loan Commitment (other than as contemplated by Section 2.20(h)) shall be a Revolving Loan Commitment with the respective same terms as the Revolving Facility Loans, (v) except as to interest rates, fees and final maturity, any Extended Synthetic L/C Commitment shall be a Credit-Linked Deposit with the same terms as the Credit-Linked Deposits and (vi) other than as set forth in Section 2.11(g), any Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments may participate on a pro rata basis or a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments, as applicable, evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan (or applicable portion thereof) will be automatically designated an Extended Term Loan, such Extending Lender’s Revolving Facility Commitment (or applicable portion thereof) will, except as contemplated by Section 2.20(h), be automatically designated an Extended Revolving Facility Commitment, such Extending Lender’s Credit-Linked Deposit (or applicable portion thereof) will be automatically designated an Extended Synthetic L/C Commitment, in each case as applicable. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan (or portion thereof), such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan, (ii) if such Extending Lender is extending a Revolving Facility Commitment (or portion thereof), except as contemplated by Section 2.20(h), such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment and (iii) if such Extending Lender is extending a Credit-Linked Deposit (or portion thereof), such Extending Lender will be deemed to have a Credit-Linked Deposit having the terms of such Extended Synthetic L/C Commitment.
(h) Notwithstanding anything to the contrary set forth in this Section 2.20, pursuant to an Extension Offer the Borrower is hereby permitted to consummate from time to time transactions with individual Revolving Facility Lenders that accept the terms contained in such Extension Offers to extend the Revolving Facility Maturity Date as applicable to each such Lender and to otherwise modify the terms of such Lender’s Revolving Facility Commitment pursuant to the terms of the relevant Extension Offer such that all or a portion of the Revolving Facility Commitment that such Revolving Facility Lender chooses to extend shall be fully drawn upon the effectiveness of such Extension, and such portion shall be automatically converted to and designated an Extended Term Loan with the terms set forth in the applicable Incremental Assumption Agreement, and such Revolving Facility Lender shall be automatically designated as an Extending Lender with respect to such Extended Term Loans. For purposes of the Credit Agreement and the other Loan Documents, such Revolving Facility Lender will be deemed as to such portion to have an Incremental Term Loan that is an Extended Term Loan with the terms as set forth in the applicable Incremental Assumption Agreement, and such Incremental Term Loan shall be treated as a Term Loan for purposes of all prepayments. For the avoidance of doubt, the terms of such Extended Term Loans shall have the same terms as any Tranche of other Extended Term Loans then existing (after giving effect to the prepayment thereof on or promptly following the applicable date of extension thereof). For the avoidance of doubt, any portion of the Revolving Facility Commitment of any Revolving Facility Lender that is designated as an Extended Term Loan pursuant to this Section 2.20(h) shall cease to be part of a Revolving Facility Commitment and shall not be part of an Extended Revolving Facility Commitment, and the Administrative Agent shall reallocate any participations in the Revolving Letters of Credit and require prepayments and reborrowings of any outstanding Revolving Facility Loans so that after giving effect thereto, such participations and Revolving Facility Loans shall be ratable as contemplated hereby.
(i) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including this Section 2.20), (i) the aggregate amount of Extended Term Loans Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments will not be included in the calculation of such Class held by each Lender.the Incremental Amount, (ii) no Extended Term Loan, Extended Revolving Facility Commitment or Extended Synthetic L/C Commitment is required to be in any minimum amount or any minimum increment, (iii) except as set forth in the applicable Extension Offer, any Extending Lender may extend all or any portion of its Term Loans, Revolving Facility Commitm
Appears in 1 contract
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or 2016 Revolving Loans, as applicable, or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans and 2016 Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the date such notice is deliveredTerm B-1 Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) the Incremental any commitments to make additional Term B-1 Loans, Initial Revolving Loans and/or 2016 Revolving Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by have the same Collateral (and no additional collateral) securing terms as the then existing Obligations;Term B-1 Loans, Initial Revolving Loans or 2016 Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (Aa) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B-1 Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans and 2016 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans or 2016 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2016 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such Incremental other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term LoanLoan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to any such Incremental Other Term Loans (except as expressly permitted above and except for covenants or other provisions applicable Loans, such floor shall only to periods after be included in the then Latest Maturity Date) are not, taken as a whole, materially more restrictive calculation of the Term Yield Differential to the Borrower and its Restricted Subsidiaries, extent such floor is greater than the terms Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans and 2016 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments and or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, as reasonably determined by the Borrower (except such Previously Absent Financial Maintenance Covenant shall automatically apply to the extent that this Agreement is amended Revolving Facilities and (which y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall not require automatically apply to the Facilities, in each case, without the consent of any Lenderother party hereto. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (c) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to such matters as are reasonably requested the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Class Term Loans and Revolving Facility Loans.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Re
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Incremental Commitments. (1a) The Borrower may, by written notice Subject to the Administrative Agent from time to time, request Incremental Term Loan Commitments not to exceed $100,000,000 from one or more Eligible Assignees, in each case, that is a Farm Credit Lender (which, in each case, may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) terms and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such Person) willing to provide such Incremental Term Loans in their sole discretion (such Lenders, the “Incremental Term Loan Lenders”). Such notice shall conditions set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in a minimum amount of $10,000,000 and minimum increments of $10,000,000herein, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall, unless otherwise agreed by the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required so long as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether be continuing or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, shall result after giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefromCommitments, the Borrower would shall have the right from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (a) one or more increases to the Aggregate Revolving Committed Amount (“Incremental Revolving Commitments” and the loans advanced thereunder, “Incremental Revolving Loans”) or (b) one or more term loan commitments or one or more increases in any then-existing term loan commitments (“Incremental Term Commitments” and the loans advanced thereunder, “Incremental Term Loans”; any Incremental Term Commitments, together with any Incremental Revolving Commitments, the “Incremental Commitments” and any Incremental Term Loans, together with any Incremental Revolving Loans, the “Incremental Loans”), by an aggregate amount of up to $1,000,000,000.
(b) The following terms and conditions shall apply to all Incremental Commitments and Incremental Loans: (a) the Incremental Loans shall constitute Credit Party Obligations, (b) (i) any Incremental Revolving Commitments shall be in compliance on the same terms (other than with Section 8.11 respect to any upfront fees or arrangement fees) as the existing Revolving Commitments and (zii) any Incremental Term Loans shall have an amortization schedule, mandatory prepayment requirements (which mandatory prepayments shall be permitted to be applied, first, to Incremental Term Loans, and second, to any Revolving Loans), interest rates, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums as determined by Hyatt, the Administrative Agent and the institutions providing the applicable Incremental Term Commitments, (c) any such Incremental Commitments and Incremental Loans shall have received documents be entitled to the same voting rights as the existing Commitments and legal opinions Loans and shall be entitled to receive proceeds of prepayments on the same basis as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term comparable Loans, the (d) any such Incremental Commitment shall be obtained from existing Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis or from other banks, financial institutions or investment funds, in each case in accordance with the respective amount terms set forth below, (e) such Incremental Commitments shall be in a minimum principal Dollar Amount (determined as of Term the most recent Revaluation Date) of $50,000,000 and integral multiples of $5,000,000 in excess thereof, (f) the proceeds of any Incremental Loan will be used in accordance with Section 3.13, (g) the Borrower shall execute such promissory notes as are necessary and requested by the Lenders to reflect the Incremental Commitments and Incremental Loans and (h) the representations and warranties made by the Borrower 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 on and as of the date of such Class held by Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date in which case such representations and warranties shall be true and correct as of such earlier date).
(c) The Borrower may invite existing Lenders or other banks, financial institutions and investment funds that are not Lenders and that are reasonably acceptable to the Administrative Agent and that would satisfy the same criteria that would be required for such bank, financial institution or investment fund to be an “Eligible Assignee” to join this Credit Agreement as Lenders to provide any Incremental Commitments and Incremental Loans (any lender in respect of the Incremental Commitments and Incremental Loans, an “Incremental Lender”), provided (i) no existing Lender shall have any obligation to provide all or any portion of any Incremental Commitments or Incremental Loans and (ii) such other banks, financial institutions and investment funds that are not existing Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request and shall thereafter be deemed to be Lenders. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Sections 10.6(c) or 10.6(e)) of the outstanding Loans (excluding Competitive Loans) and Participation Interests to the Incremental Lenders providing any Incremental Revolving Commitment so that, after giving effect to such assignments, each Lender (including the Lenders providing the Incremental Revolving Commitments) will hold Loans and Participation Interests equal to its Commitment Percentage of all outstanding Loans and LOC Obligations (and accordingly the Borrower shall pay any additional amounts required pursuant to Section 2.17).
(d) ▇▇▇▇▇, the Administrative Agent and the applicable Incremental Lenders may, without the consent of any other Lender, enter into an amendment to any Credit Document (an “Incremental Amendment”) to 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 2.5. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any Incremental Amendment. The provisions of this Section 2.5(d) shall supersede any other provisions of this Agreement and the Credit Documents, including Section 2.12 and Section 10.1.
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Sources: Credit Agreement (Hyatt Hotels Corp)
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation same terms as the Administrative Agent shall reasonably specify Initial Revolving Loans or (y) commitments to evidence make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant Commitments initially incurred under this Agreement or (y) commitments to this clause (d) shall specify make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower initially incurred under this Agreement (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of “Other Term Loans”);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.
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Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the option of the Borrowers in Dollars and/or Euro and, in the case of any Incremental Revolving Facility Commitments, any Alternate Currency in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such Lenders, the “Incremental Term Loan Lenders”person pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be (x) in minimum increments of $5,000,000 and a minimum amount of $10,000,000 25,000,000 and (y) minimum increments of $10,000,000, €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shalltogether with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be not less than ten Business Days after (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the date such notice is deliveredRevolving Facility Loans (“Other Incremental Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and Incremental Assumption Agreement and, such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of have (A) substantially the Borrower that do not guarantee same terms as the existing Initial Term Loans and or (B) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;
Administrative Agent, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Facility, (Biii) the Weighted Average Life to Maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Term Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (A) substantially the same terms as the Initial Revolving Facility or (B) such interest ratesother terms as shall be reasonably satisfactory to the Administrative Agent, optional prepayment provisions and fees as may be agreed between (v) in the Lenders providing event that the applicable All-in-Yield for such Incremental Term Loan Commitments and is greater than the Borrower (except that any Incremental All-in-Yield for the existing Initial Term B Loans forming an addition to an by more than 50 basis points, then the Applicable Margin for the existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject , shall be increased to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by extent necessary so that the Borrower and the Lenders providing All-in-Yield for such Incremental Term Loan; provided thatLoan Commitments is no more than 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the terms applicable case of any Incremental Revolving Facility Commitments in effect prior to the one year anniversary of the Closing Date, in the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Applicable Margin for the existing Revolving Facility shall be increased so that the All-in-Yield for the existing Revolving Facility is no more than 50 basis points less than the All-in-Yield for the Incremental Revolving Facility Commitments, (vii) at the time of and immediately after giving effect to such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Loan Commitments and Loansand/or Incremental Revolving Facility Commitments, as reasonably determined by applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the Borrower representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that in the case of a Limited Condition Acquisition, the only representations and warranties that will be required to be true and correct in all material respects will be the Specified Representations. 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 is shall be amended to the extent (which shall not require but only to the consent of any Lenderextent) necessary to incorporate such more restrictive provisions for reflect the benefit existence and terms of the then existing LendersIncremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e); and. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.22 unless (wi) subject to the limitations in Section 1.07(a) in the case of any Borrowing in connection with a Limited Condition Acquisition, on the date of such effectiveness, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (bii) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (andexcept as otherwise specified in the applicable amendment, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and (with sufficient copies for each of the Lenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) legal opinions as with respect to such matters as are customary matters, board resolutions, Notes and other customary closing certificates reasonably requested by the Administrative Agent. Upon any increase Agent and consistent with those delivered on the Closing Date under subsection 4.02.
(d) Each of any existing Class of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans) in the form of additional Initial Term Loans, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments that are Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) The Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of such Class are held by the Lenders payment and of such Class on a pro rata basis in accordance security with the respective amount of Term Loans of such Class held by each Lenderand Revolving Facility Loans and shall have the same Guarantees.
Appears in 1 contract
Incremental Commitments. (1a) The Borrower Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such LendersIncremental Revolving Facility Lender is a Lender, the “Incremental Term Loan Lenders”)an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25,000,000 or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Facility Loans (which shallmay be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), unless otherwise agreed by and (iv) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with pricing and amortization terms identical to the date such notice is deliveredTerm A Loans (which may be part of the applicable existing Class) or commitments to make term loans with pricing and amortization terms different from the Term A Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided that:
provided, that (i) the Other Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a rank pari passu basis by the same Collateral (or junior in right of payment and no additional collateral) securing the then of security with each existing Obligations;
Class of Loans, (ii) (A) the Maturity Date final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have (Bx) the Weighted Average Life same terms as the Term A Loans; provided that, with the consent of the Borrowers, the Incremental Assumption Agreement with respect to Maturity any Other Incremental Term Loans constituting Acquisition Loans may provide for additional mandatory prepayment requirements so long as any such additional mandatory prepayment requirement applies on at least a pro rata basis to all then outstanding Classes of Term Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life weighted average life to Maturity maturity of any then the then-outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis Loans with the then outstanding Term Loans in any mandatory prepayment;
longest weighted average life to maturity, (iv) the Other Incremental Term Revolving Loans shall have such interest ratesrank pari passu in right of payment and of security with the Revolving Facility Loans, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date and the matters addressed by clause (iv) above, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the aboveAdministrative Agent, (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans and (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall be on terms denominated in Dollars and pursuant to documentation to be determined borrowed by the Borrower and Borrowers. Each of the Lenders providing such Incremental Term Loan; provided parties hereto hereby agrees that, (i) upon the terms applicable to effectiveness of any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are notAssumption Agreement, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except this Agreement shall be amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for Section 10.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless
(i) unless on the date of such effectiveness, the conditions set forth in paragraphs (wb) no Default and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such additional customary documents and filings (including amendments to the Vessel Mortgages and other Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders and/or the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) one or Event more Classes of Default then-existing Term Loans and Revolving Facility Loans and (iii) the Company shall exist be in Pro Forma Compliance after giving pro forma effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the incurrence of Indebtedness Loans to be made thereunder and use the application of the proceeds therefrom; (x) the conditions set forth in clauses (a) therefrom as if made and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made applied on such date, clause .
(cd) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and Each of the incurrence of Indebtedness thereunder (assuming parties hereto hereby agrees that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as the existing Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended Revolving Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrowers shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrowers may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the Net Proceeds of which are used to repay Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrowers propose that the Refinancing 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 Refinancing Term Loans on
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided that in the case of Incremental Revolving Facility Commitments either, at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such LendersIncremental Revolving Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, and no Letters of Credit may be requested by the “Borrower under, such Incremental Term Loan Lenders”)Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 20.0 million or equal to the remaining permitted amount or, Incremental Amount or in each case, case such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”), unless otherwise agreed by (iii) in the Administrative Agentcase of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after commitments to make term loans with terms identical to Term B Loans or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the date Term B Loans or Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such notice is deliveredIncremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not be guaranteed by any Subsidiaries of materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that do not guarantee are customary for “high yield” securities (as determined in good faith by the existing Loans and Borrower) or (z) such other terms as shall be secured on a pari passu basis by reasonably satisfactory to the same Collateral (and no additional collateral) securing the then existing Obligations;Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (Aprovided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the Maturity Date final maturity date of any Incremental Other Term Loans shall be no earlier than the then Latest Term B-1 Facility Maturity Date and in effect on the date of incurrence (Bprovided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Incremental Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans (without giving effect to any then outstanding Class of amortization or prepayments on the Term B-1 Loans or Other Term Loans;
) (iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
provided that this clause (iv) Incremental shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between B-1 Facility Maturity Date in effect on the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class date of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loansincurrence);,
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above to pricing, final maturity date, participation in voluntary and except for mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the then Latest Revolving Facility Maturity DateDate with respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) are notand (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Initial Revolving Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as reasonably determined in good faith by the Borrower Borrower) or (z) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (w) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower, (x) ranks pari passu in right of security with the Term B-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent that this Agreement any portion of the Term Yield Differential is amended attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time and the “SOFR floor” applicable to the initial Term B-1 Loans, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(which ix) there shall not require the consent be no obligor in respect of any LenderIncremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) to incorporate such more restrictive provisions there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the benefit of the then existing Lenders)Collateral; and
(vixi) subject any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 1.062.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b2.21 unless on the date of such effectiveness, (A) unless (w) to the extent required by the relevant Incremental Assumption Agreement, no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment have occurred and the incurrence of Indebtedness thereunder be continuing or would result therefrom and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents a certificate to that effect dated such date and legal opinions as executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to such matters as are reasonably requested by the Administrative Agent. Upon any increase Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom.
(d) On the date of the making of any existing Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the Lenders contrary set forth in Section 2.07 or Section 2.13, such Incremental Term Loans shall take any action be added to (and constitute a part of, be of the same Type as may be reasonably required by and, at the Administrative Agent to ensure that election of the Borrowings Borrower, have the same Interest Period as) each Borrowing of such Class are held by the Lenders outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in accordance with the respective amount each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class held and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Term Benchmark Loans denominated in Dollars to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender.”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extende
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Incremental Commitments. (1a) The Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Term Loan Lenders”)Revolving Facility Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested anticipated to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agentsame terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be not less than ten Business Days after (x) commitments to make term loans on the date such notice is deliveredsame terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the Incremental same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralvii) securing the then existing Obligations;below),
(ii) (A) the Maturity Date final maturity date of any Incremental such Other Term Loans shall be no earlier than the then Latest Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Incremental such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term B Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the aboveother clauses of this proviso, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Incremental Revolving Facility Lenders providing in their sole discretion), such Incremental Other Revolving Loans shall have (x) substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBORSOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the terms extent any portion of the Term Yield Differential is attributable to a higher “LIBORSOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBOTerm SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBORSOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBORSOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(A) such Incremental Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Datebut not a greater than pro rata basis) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of Term B Loans in any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders)mandatory prepayment hereunder; and
(viA) subject there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 1.069.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clause (d) of Section 4.01 shall exist giving pro forma be satisfied and the Administrative Agent shall have received a certificate to that effect to dated such date and executed by a Responsible Officer of the Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) be continuing or would result therefrom and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received documents customary legal opinions, board resolutions and legal opinions as other customary closing certificates and documentation to such matters as are reasonably requested the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent. Upon any increase , consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of any existing Class of Term Loanssuch amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the Lenders shall relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings foregoing.
(e) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of such Class are held this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders of such any Class of Term Loans and/or Revolving Facility Commitments, on a pro rata basis (based, in accordance with the respective amount case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class held and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender.. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to inte
Appears in 1 contract
Incremental Commitments. (1a) The After the Closing Date has occurred, the Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Term B-1 Loans or Term B-2 Loans, unless otherwise agreed by as applicable, form a single Class of) Term B-1 Loans or Term B-2 Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative Agent, be not less than ten Business Days after the date such notice is deliveredTerm B-1 Loans and Term B-2 Loans (“Other Incremental Term Loans”).
(2b) The Loan Parties, the Administrative Agent Borrower and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x)(A) commitments to make additional Term B-1 Loans shall have the same terms as the Term B-1 Loans, and shall form part of the same Class of Term B-1 Loans and (B) commitments to make additional Term B-2 Loans shall have the same terms as the Term B-2 Loans, and shall form part of the same Class of Term B-2 Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Term B-1 Loans and Term B-2 Loans or, at the option of the Borrower, shall rank junior in right of security with the Term B-1 Loans and Term B-2 Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Term B-1 Loans and/or Term B-2 Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral subject to clause (and no additional collateralv) securing the then existing Obligations;below),
(ii) (Aiii) the Maturity Date final maturity date of any such Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date applicable to the Term B-1 Loans and Term B-2 Loans in effect at the date of incurrence of such Other Incremental Term Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (Bwhich shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) the same terms as the Term B-1 Loans or Term B-2 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of the Term Loans;Loans with the longest remaining Weighted Average Life to Maturity,
(iiiv) no with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrowers, except that the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Term B-1 Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis basis) than the Initial Term A-1 Loans, the Term B-1 Loans and, other than with respect to any mandatory prepayment pursuant to Section 2.11(c), the then outstanding Term B-2 Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) Incremental Term Loans there shall have such interest rates, optional prepayment provisions and fees as may be agreed between no borrower (other than the Lenders providing Borrower) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition to an existing Class and Incremental Revolving Facility Commitments shall not be secured by any asset of Term Loans shall have the same interest rates, optional prepayment provisions and fees (Borrower or its Subsidiaries other than upfront fees) as then Collateral. Each party hereto hereby agrees that, upon the applicable existing Class effectiveness of Term Loans);
(v) subject to the above, any Incremental Term Loans Assumption Agreement, this Agreement shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except amended to the extent that (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is amended necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (which shall not require to be unreasonably withheld) and furnished to the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); andother parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition, to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving pro forma effect to such tranche of Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromLoans); (xii) the conditions representations and warranties of the Borrower set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations and those representations of the seller or the target company (bas applicable) included in the acquisition agreement related to such Permitted Business Acquisition that are material to the interests of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Dollar Tree Inc)
Incremental Commitments. (1a) The Borrower After the Closing Date has occurred, BGI may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (in each case, except as set forth in Section 1.07) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, may include any existing Lender (Lender, but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, persons which would qualify as would be required in connection with an assignment assignees of a Term Loan to such PersonLender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersdiscretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a minimum amount of $10,000,000 and minimum increments the Dollar Equivalent of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shallshall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, unless otherwise agreed by maturity, amortization, participation in mandatory prepayments and/or other terms different from the Administrative AgentInitial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be not less than ten Business Days after in the date sole discretion of such notice is delivered)Lender.
(2b) The Loan Parties, the Administrative Agent BGI and any other Person whose consent is required as provided above each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan CommitmentCommitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Additional Credit Extension Amendment pursuant to this clause (d) Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term LoansLoans and/or Incremental Revolving Facility Commitments; provided provided, that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of BGI, shall rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall subject to clause (v) below) or be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;unsecured,
(iiiii) (A) the Maturity Date final maturity date of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans (provided that any such Permitted Incremental Term A Loans may not mature inside the then-applicable Revolving Facility Maturity Date), any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap, and Customary Bridge Financings) shall be no earlier than the then Latest Initial Term Facility Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by BGI and the Incremental Term Lenders in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Facility Maturity Date),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans, any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap, and Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Facility,
(v) with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and BGI, except that with respect to any Other Incremental Term Loan incurred on or prior to the date that is six (6) months following the Closing Date and in the form of a syndicated term loan B facility, in each case, secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Initial Term Loans, the All-in Yield in respect of any such Other Incremental Term Loan may exceed the All-in Yield in respect of the Initial Term Loans by no more than 0.75%, or if it does so exceed such All-in Yield (such excess, the “Term Yield Differential”) then the Applicable Margin (or the Floor as provided in the following proviso) applicable to such Initial Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher Floor being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Relevant Rate floor in effect for an Interest Period of three (3) months’ duration at such time, and, with respect to such excess, the Floor applicable to the outstanding Term Loans shall be increased to an amount not to exceed the Floor applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis or solely to the same extent that any existing Class of Term Loans;
(iii) no Incremental Term Loan shall participate Loans participates on a greater than pro rata basis with as compared to any other existing Class of Term Loans, on a greater than pro rata basis, than the then outstanding Term Loans in any mandatory prepayment;prepayment hereunder,
(ivvii) there shall be no borrower (other than, (A) in respect of any Incremental Term Loans shall have such interest ratesLoan Commitments, optional prepayment provisions and fees as may be agreed between BGI or (B) in respect of any Incremental Revolving Facility Commitments, the Lenders providing Borrowers) or guarantor (other than the applicable Guarantors) in respect of any Incremental Term Loan Commitments and the Borrower or Incremental Revolving Facility Commitments, and
(except that any viii) Other Incremental Term Loans forming an addition and Incremental Revolving Facility Commitments shall not be secured by any asset of BGI or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to an existing Class the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e), including, for the avoidance of doubt, to (x) provide that the Lenders providing any Permitted Incremental Term A Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Financial Covenants and be included in the “Required Financial Covenant Lenders); and” and (y) make appropriate changes to Section 6.10, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with BGI’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(vic) subject to Section 1.06Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event of Default shall exist immediately prior to and after giving pro forma effect to such thereto (subject, in the case of any tranche of Incremental Term Loans or any Incremental Revolving Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefromthat is used to finance a Limited Condition Transaction, to Section 1.07); (xii) the conditions representations and warranties of BGI set forth in clauses this Agreement shall be true and correct in all material respects (aother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (ii) shall be limited to the Specified Representations, and in the case of any Limited Condition Acquisition (other than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders (in their capacities as such) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent that BGI or its applicable Subsidiary has the right (taking into account any applicable cure periods) to terminate its obligations under such acquisition agreement as a Borrowing is made on result of a failure of such date, clause (c) is required representations to be complied with)accurate; (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (ziii) the Administrative Agent shall have received documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. Upon any increase The Administrative Agent shall promptly notify each Lender as to the effectiveness of any existing Class each Incremental Assumption Agreement.
(d) Each of Term Loans, the Lenders shall parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. BGI agrees that Section 2.16 shall apply to any conversion of Term SOFR Loans to ABR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Credit Agreement (Barnes Group Inc)
Incremental Commitments. (1) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed $100,000,000 the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their sole discretion (such Lendersown discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent, the “Incremental Term Loan Lenders”Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 and minimum increments of $10,000,000, or equal to the remaining permitted amount Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective effective, (which shalliii) in the case of Incremental Revolving Facility Commitments, unless otherwise agreed by whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation same terms as the Administrative Agent shall reasonably specify Initial Revolving Loans or (y) commitments to evidence make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have Commitments, whether such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower are to be (except that any Incremental x) commitments to make term loans with terms identical to 2021 Term Loans forming an addition or (y) commitments to an existing Class of Term Loans shall have make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental 2021 Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06, no Incremental Term Loan Commitment shall become effective under this Section 2.01(b) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (z) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of “Other Term Loans, the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lender.”). Doc#: US1:15347125v11
Appears in 1 contract
Incremental Commitments. (1a) The Borrower After the Closing Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Revolving Facility Commitments in an amount not to exceed $100,000,000 the Incremental Amount from one or more Eligible Assignees, in each case, that is a Farm Credit Lender Incremental Revolving Lenders (which, in each case, which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Term Loan without its consent) and shall be subject to such consents, if any, as would be required in connection with an assignment of a Term Loan to such PersonLender) willing to provide such Incremental Term Loans Revolving Facility Commitments, as the case may be, in their sole discretion own discretion; provided, that (such Lendersi) each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under the Section 9.04, the “applicable Issuing Banks and the applicable Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Term Loan Revolving Lender is an existing Lender, and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments, the Canadian Revolving Facility Commitments, the U.K. Revolving Facility Commitments or the German Revolving Facility Commitments and shall be on the same terms (other than with respect to commitment, arrangement, structuring, ticking, upfront or similar fees paid to the Incremental Revolving Lenders”) as the existing U.S. Revolving Facility Commitments, Canadian Revolving Facility Commitments, U.K. Revolving Facility Commitments or German Revolving Facility Commitments, as applicable, and in all respects shall become a part of the U.S. Revolving Facility, Canadian Revolving Facility, U.K. Revolving Facility or German Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid), the Unused Line Fee and applicable letter of credit fees applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); provided, further, that the Canadian Revolving Facility Commitments shall not exceed $32,500,000, the U.K. Revolving Facility Commitments shall not exceed $47,500,000 and the German Revolving Facility Commitments shall not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Facility Commitments being requested (which shall be in minimum increments of $5 million and a minimum amount of $10,000,000 and minimum increments of $10,000,000, 25 million or equal to the remaining permitted amount or, in each case, such lesser amount approved by the Administrative AgentIncremental Amount), (ii) whether the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or a new Class of Term Loans and Amount, (iii) the date on which such Incremental Term Loan Revolving Facility Commitments are requested to become effective (which shallthe “Increased Amount Date”) and (iv) whether such Incremental Revolving Facility Commitments will constitute U.S. Revolving Facility Commitments, unless otherwise agreed by the Administrative AgentCanadian Revolving Facility Commitments, be not less than ten Business Days after the date such notice is delivered)U.K. Revolving Facility Commitments or German Revolving Facility Commitments.
(2b) The Loan Parties, the Administrative Agent Borrowers and any other Person whose consent is required as provided above each Incremental Revolving Lender shall execute and deliver an 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 increase the U.S. Revolving Facility, the Canadian Revolving Facility, the U.K. Revolving Facility or the German Revolving Facility, as the case may be, by the amount of the Incremental Revolving Facility Commitments evidenced thereby, except as required by clause (c) below. Any such deemed amendment may be memorialized in writing by the Administrative Agent an Additional Credit Extension Amendment with the Borrowers’ consent (not to be unreasonably withheld) and such furnished to the other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of the applicable Incremental Term Loans; provided that:parties hereto.
(ic) Notwithstanding the Incremental Term Loans shall not be guaranteed by any Subsidiaries of the Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (and no additional collateral) securing the then existing Obligations;
(ii) (A) the Maturity Date of any Incremental Term Loans shall be no earlier than the then Latest Maturity Date and (B) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans;
(iii) no Incremental Term Loan shall participate on a greater than pro rata basis with the then outstanding Term Loans in any mandatory prepayment;
(iv) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable existing Class of Term Loans);
(v) subject to the above, any Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Term Loan; provided that, the terms applicable to any such Incremental Term Loans (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the then Latest Maturity Date) are not, taken as a whole, materially more restrictive to the Borrower and its Restricted Subsidiaries, than the terms applicable to the then outstanding Commitments and Loans, as reasonably determined by the Borrower (except to the extent that this Agreement is amended (which shall not require the consent of any Lender) to incorporate such more restrictive provisions for the benefit of the then existing Lenders); and
(vi) subject to Section 1.06foregoing, no Incremental Term Loan Revolving Facility Commitment shall become effective under this Section 2.01(b) 2.21 unless (wi) no Default or Event on the date of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment and effectiveness, the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the applicable conditions set forth in clauses paragraphs (ab) and (bc) of Section 5.02 are satisfied whether or not 4.01 shall be satisfied, and the Administrative Agent shall have received a Credit Extension is made on certificate to that effect dated such date (andand executed by a Responsible Officer of the U.S. Borrower, only to the extent a Borrowing is made on such date, clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans and the incurrence of Indebtedness thereunder (assuming that such commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (zii) the Administrative Agent shall have received customary documents and legal opinions filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to such matters as assure that the Revolving Loans in respect of Incremental Revolving Facility Commitments are reasonably requested secured by the Collateral ratably with all other Revolving Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent. Upon any increase of any existing Class of Term Loans, the Lenders shall Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Term Rate Loans to Base Rate Loans, Daily Resetting Term Rate Loans or Daily Simple RFR Loans reasonably required by the Administrative Agent to ensure that effect the Borrowings of such Class are held by the Lenders of such Class on a pro rata basis in accordance with the respective amount of Term Loans of such Class held by each Lenderforegoing.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Magnera Corp)