Incremental Commitments. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 6 contracts

Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ at the time of incurrence of ~~Permitted Pari Passu Notes~~the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant~~ as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to ~~Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y)~~ make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans ~~than~~ on the ~~provisions applicable to~~ same terms as the ~~existing Term~~ 2016 Revolving Loans or ~~as are otherwise reasonably satisfactory~~ (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 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 2016 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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B-1 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 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, (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 “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B-1 Loans and/or 2016 Revolving Loans shall have the same terms as the Term B-1 Loans or 2016 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 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 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 such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2016 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-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 ~~require~~ 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-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; (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 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, such Previously Absent Financial Maintenance Covenant shall 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 other ~~Lender)~~party hereto. Each party hereto hereby agrees that, ~~with~~ 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 ~~Commitment~~ Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided ~~therein~~ for in Section 9.08(e). Any amendment to ~~occur on~~ this Agreement or any other Loan Document that is necessary to effect the ~~date on which (w) a fully executed copy~~ provisions of this Section 2.21 and any such ~~Incremental Amendment~~ collateral and other documentation shall ~~have been delivered to the Administrative Agent, (x) all fees required to~~ be ~~paid~~ deemed “Loan Documents” hereunder and may be memorialized 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~~ writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given~~ the extent required by the Administrative Agent, 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including any prepayment premium, penalties or~~ have such 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 terms as shall be reasonably satisfactory to the ~~establishment and incurrence of such Incremental Term Loans.~~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. (a) ~~Borrower~~ The Company may ~~at any time and~~ from time to time ~~request one or more~~ notify the Administrative Agent that certain of the Lenders ~~(or one or more Eligible Transferees who will become Lenders)~~ designated by the Company and/or that additional lenders shall be added to ~~provide an increase in Revolving~~ this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “~~Revolving~~ Commitment Increase”~~), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”~~) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase by executing and ~~any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject~~ delivering to the ~~terms~~ Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders 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~~ specifying (i) ~~no Lender shall be obligated to provide an~~ the respective Incremental ~~Facility as a result~~ Commitments of ~~any~~ such ~~request by Borrower,~~ Incremental Lenders and (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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))Commitment Increase Date; 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ (including the incurrence of ~~payment~~ any Incremental Loans on the applicable Commitment Increase Date and ~~security with the Initial Revolving Loans,~~ use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) 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 sum of the ~~Additional/Replacement Revolving~~ Total Commitments ~~may have other terms that may differ from those~~ then in effect (including, for the avoidance of ~~other Tranches of Revolving~~ doubt, Incremental 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 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 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, (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 satisfiedexceed $2 billion. (b) ~~At the time of the provision of~~ Each Incremental ~~Commitments pursuant~~ Lender that is a signatory 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 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~~ Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental ~~Lender~~Loan”) ~~shall execute and deliver~~ to the ~~Administrative Agent~~ Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an ~~Incremental Amendment (which shall~~ aggregate principal amount outstanding at any time up to but not ~~require~~ exceeding the ~~consent of any other Lender), with the effectiveness~~ amount 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~~ Lender specified in such Incremental Loan Activation Notice, subject to the ~~Administrative Agent, (x) all fees required to be paid in connection therewith at~~ terms of this Agreement and 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 applicable Incremental ~~Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth~~ Loan Activation Notice. Nothing 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~~ 2.27 shall be ~~deemed modified~~ construed to ~~reflect the revised~~ obligate any Lender to execute an Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 LenderLoan Activation Notice. (c) ~~Notwithstanding anything to~~ On any Commitment Increase Date, in the ~~contrary contained above in this Section 2.15~~event any Loans under the Facility are then outstanding, ~~the Incremental Term Loan Commitments provided by an~~ (i) each relevant Incremental Lender ~~or Incremental Lenders, as the case may be, pursuant~~ shall make available 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~~ such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be ~~unreasonably withheld, delayed or conditioned),~~ held ratably by all Lenders with Commitments in 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,~~ Facility in ~~any case so long as the following requirements are satisfied: (i) the Incremental Term Loans to be made pursuant~~ accordance with such Commitments after giving effect to such ~~Incremental Amendment shall have the same Borrower~~increase, ~~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~~ Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans shall have the same Scheduled Repayment Dates as then remain 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 under this Agreement and (iii) on the ~~date of the making of such new Incremental Term Loans,~~ Company and ~~notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans~~ any relevant Subsidiary Borrower shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 pay to the relevant ~~series of Term Loans and/or Commitments being extended~~Lenders the amounts, ~~repriced or refinanced are offered the opportunity to participate in such transaction on~~ if any, payable under Section 2.22 as 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 result of such ~~Incremental Term Loans~~prepayment.

Appears in 5 contracts

Sources: 364 Day Revolving Credit Agreement (General Motors Co), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.)

Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower ~~may~~ shall have the right, in consultation and coordination with, Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time ~~request~~ after the Initial Borrowing Date and prior to the date which is three months prior to the Revolving Loan Maturity Date, that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become ~~Lenders~~Lenders as provided below) to provide ~~an increase in Revolving Commitments (a “Revolving Commitment Increase”)~~Incremental Commitments, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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~~ Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental ~~Facility~~ Commitment without the consent of any other Lender, (iii) each provision of Incremental ~~Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available~~ Commitments on a given date pursuant to ~~a given Incremental Amendment~~ this Section 2.14 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (xiii) each Lender (including any Eligible Transferee who will become a ~~Lender~~lender)) ~~agreeing~~ of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided pursuant to ~~provide an~~ this Section 2.14 shall not exceed the Maximum 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 satisfiedAmount. (b) At the time of the provision of Incremental Commitments pursuant to this Section ~~2.15~~2.14, the 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 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)~~Commitment Agreement, with the effectiveness of ~~the~~ such Incremental Lender’s Incremental Commitment ~~provided therein~~ to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than 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~~ up-front or arrangement fees owing to ~~the~~ Administrative Agent ~~to the extent it served as the arranger for the Incremental Commitments~~(or any affiliate thereof)), (yx) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in ~~this Section 2.15~~ such Incremental Commitment Agreement shall have been satisfied. ~~The~~ Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment~~Commitment Agreement, and at such time, (i) ~~Schedule 2.01~~ the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Appendix A shall be deemed modified to reflect the revised ~~Incremental~~ Revolving Loan Commitments of the affected Lenders and (iiiii) to the extent requested by any Incremental Lender, ~~Term~~ Revolving Loan Notes ~~or Revolving Notes, as applicable,~~ will be ~~issued~~ issued, at the expense of the Borrower~~’s expense~~ , to such Incremental ~~Lender, to be~~ Lender in conformity with the 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~~2.05. (c) ~~Notwithstanding anything to~~ At the ~~contrary contained above in this Section 2.15, the~~ time of any provision of 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~~Section 2.14, the Borrower shall, in coordination with ~~the consent~~ Administrative Agent, repay outstanding Revolving Loans of certain of the ~~Administrative Agent~~ Lenders, and incur additional Revolving Loans from certain other Lenders (~~not to be unreasonably withheld, delayed or conditioned~~including the Incremental Lenders), ~~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~~ each 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 remain 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 extent necessary so that all of the respective Tranche proportionately); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates Lenders participate in each outstanding ~~Borrowing~~ borrowing of ~~Term~~ Revolving Loans pro rata on the basis of ~~the~~ their respective ~~Tranche~~ Revolving Loan Commitments (after giving effect to any increase in the ~~incurrence of such new Incremental Term Loans~~ Total Commitment pursuant to this Section ~~2.01(b)~~2.14) ~~on a pro rata basis. To~~ and with the ~~extent~~ Borrower being obligated to pay to the ~~provisions~~ respective Lenders any costs of the ~~preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add~~ type referred to in Section 2.10 in connection with any such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretorepayment and/or incurrence. (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 4 contracts

Sources: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ at the time of incurrence of ~~Permitted Pari Passu Notes~~the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant~~ as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to ~~Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y)~~ make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are requested to ~~the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~become effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms ~~and provisions of any Revolving Commitment Increase shall be identical to~~ as the Initial Revolving Loans ~~and~~ 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 ~~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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B 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 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, (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 “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B 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 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 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 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) ~~all fees required~~ substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ Agent, (vii) 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 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 extent ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ 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; (iviii) ~~Schedule 2.01~~ (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 (ix) 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given Incremental Amendment~~ the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including~~ have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any ~~prepayment premium~~other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, ~~penalties or other call protection) related~~ such terms as shall be reasonably satisfactory to such ~~extension~~Issuing Bank or Swingline Lender, ~~repricing~~ (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or ~~refinancing, and~~ a less than pro rata basis (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.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. ~~(a)~~ The Borrower ~~may~~ may, at any time ~~and~~ or from time to time after the Closing Date, by notice to the Administrative Agent (an “Incremental Loan Request”), request (A) one or more ~~Lenders~~ new commitments which may be in the same Facility as any outstanding Term Loans of an existing Class (a “Term Loan Increase”) or a new Class of Term Loans (each, an “Incremental Term Facility”, collectively with any Term Loan Increase, the “Incremental Term Commitments”), (B) one or more ~~Eligible Transferees who will become Lenders) to provide~~ increases in the amount of the Revolving Credit Commitments or any outstanding revolving credit commitment of an ~~increase in Revolving Commitments~~ existing Class (a “Revolving Commitment Increase”), ) or the establishment of one or more ~~additional Tranches of Revolving Commitments~~ new revolving credit commitments (~~an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith,~~ each, an “Incremental ~~Term Loan~~Revolving Facility” ~~and, collectively, the “Incremental Term Loans” and,~~ and collectively with any Revolving Commitment ~~Increase~~ Increases, the “Incremental Revolving Credit Commitments”) and/or (C) one or more new commitments which may be in the same Facility as any outstanding DDTL Commitments of an existing Class (a “DDTL Commitment Increase”) or a new Class of DDTL Commitments (each, an “Incremental DDTL Facility”, collectively with any DDTL Commitment Increase, the “Incremental DDTL Commitments”, and any ~~Additional/Replacement~~ Incremental DDTL Facility, collectively with any Incremental Term Facility and any Incremental Revolving ~~Commitment~~Facility, ~~each,~~ each an “Incremental Facility” and ~~collectively~~any such Incremental DDTL Commitments, collectively with any Incremental Term Commitments and any Incremental Revolving Credit Commitments, the “Incremental ~~Facilities~~Commitments”), whereupon the Administrative Agent shall be permitted to deliver a copy (or a description thereof in lieu of a copy) to ~~Borrower and, subject to~~ the ~~terms~~ Lenders. Incremental Commitments 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 ~~Security Agreement, and guaranteed under each relevant Guaranty,~~ Collateral on a pari passu basis with ~~all other Loans~~ the Liens securing the Initial Term Loans, (B) secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, (C) unsecured or not secured by the Collateral or (D) solely in the case of Designated Alternative Security ~~Agreement~~ Debt, (x) secured by the Collateral on a pari passu or junior lien basis with respect to the Liens securing the Initial Term Loans and ~~guaranteed under such Guaranty Agreement~~ (y) secured by assets not constituting Collateral. For the avoidance of doubt, Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall ~~not~~ be secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans. Any Incremental Facility may be incurred by the Borrower or any ~~assets that do not constitute Collateral for~~ Loan Party organized under the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (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 laws of the ~~relevant conditions set forth in this Agreement~~United States, ~~make Incremental Revolving Loans and/or Incremental Term Loans~~ any state thereof, the District of Columbia or any territory thereof so long as all obligors under ~~the Tranche specified in~~ such Incremental ~~Amendment as provided~~ Facility are the Loan Parties. Any Incremental Facility may be denominated in ~~Section 2.01(c) (with respect~~ Dollars or any other currency reasonably acceptable 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 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~~ Lenders providing 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 LenderFacility. (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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 4 contracts

Sources: Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.)

Incremental Commitments. At any time following the earlier of (ax) 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 ~~at any time and from time~~ by written notice to ~~time~~ the Administrative Agent elect to request ~~one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ an increase in to the existing Revolving Facility Commitments (~~a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (~~any such ~~Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~increase, the “Incremental ~~Term Loans” and, collectively with any~~ Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an~~ Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental ~~Facility~~Term Facility Commitments” and ~~collectively~~together with the Incremental Revolving Facility Commitments, if any, the “Incremental ~~Facilities~~Commitments”~~) 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~~ amount, collectively, not to exceed the greater 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~~ U.S.$50.0 million and (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) U.S.$100.0 million if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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~~Pro Forma Basis, 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such ~~new~~ Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in each case, a lesser amount in integral multiples of U.S.$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 after the date on which such notice is delivered to 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 in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental 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. 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 (“Incremental Term Loans”) shall be made on such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such 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 ~~2.01(b)) on a pro rata basis. To the extent~~ 2.16 in connection with the provisions of the ~~preceding clause~~ Incremental Commitments; (~~iii~~vi) ~~require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to~~ the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche Borrower and ~~which will end on the last day of such Interest Period), which irregular interest periods~~ its Affiliates shall not be permitted ~~notwithstanding anything~~ to ~~the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant~~ commit 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 Commitments or make any Incremental Term Loans ~~does not exceed~~ and (vii) if the ~~sum~~ 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 (xA) such Applicable Margin for the Incremental Term Loans over (B) the ~~principal amount~~ 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 ~~applicable~~ 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 terms of the Incremental Commitments and the Incremental 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~~evidenced thereby, and ~~(z) fees~~ the Administrative Agent and ~~expenses (including~~ the Borrower may revise this Agreement to evidence such amendments without the consent of 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 LoansLender.

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. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time request~~ time, on one or more ~~Lenders (or~~ occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Cap from one or more ~~Eligible Transferees who will become Lenders~~Incremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide ~~an increase~~ such Incremental Commitments, as the case may be, in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 theretotheir own discretion; ~~it being understood and agreed, however~~provided, that (i) no each Incremental Lender shall be ~~obligated~~ subject to ~~provide~~ 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 Lender is an ~~Incremental Facility as a result of any such request by Borrower~~existing Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any ~~Lender (including any Eligible Transferee who will~~ 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 ~~Lender) may so provide an Incremental Facility without~~ 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 ~~other Lender,~~ Incremental Commitment to comply with this clause (~~iii) each Incremental Facility~~ ii). Such notice shall ~~be denominated in Dollars or an Alternative Currency,~~ set forth (iv1) the amount of ~~any~~ the Incremental ~~Facility made available pursuant to a given Incremental Amendment~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum ~~aggregate~~ amount ~~for all Lenders which provide~~ of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental ~~Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000~~Amount), (v2) the aggregate ~~principal~~ amount of ~~any Loan or Commitment~~Incremental Commitments, ~~as applicable~~which shall not exceed the Incremental Amount, ~~pursuant to an Incremental Facility on~~ and (3) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental ~~Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior~~ Commitments are requested to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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% become effective (the “~~MFN Pricing Test~~Increased Amount Date”)~~; and (III) such Tranche of Incremental Term Loans may~~ . The Borrower shall 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~~ no obligation to offer any Lender the ~~application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable~~ opportunity to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 participate 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 Incremental 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental 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 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~~ Assumption Agreement. Each of the ~~consent of any other Lender), with~~ 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 ~~Commitment provided therein to occur on the date on which (w) a fully executed copy of~~ Commitments evidenced thereby. Any such ~~Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to~~ deemed amendment may be ~~paid~~ memorialized 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~~ writing by the Administrative Agent with the Borrower’s written consent (not to be unreasonably withheld) and furnished 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Commitment shall become effective under 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: 2.22 unless (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 remain 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 (iii) on the date of such effectiveness, the ~~making of such new Incremental Term Loans, and notwithstanding anything to the contrary~~ conditions set forth in paragraphs (b) and (c) of Section ~~2.09, such new Incremental Term Loans~~ 4.02 shall be ~~added~~ satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and ~~form part of~~other closing certificates and documentation to the extent reasonably required by the Administrative Agent, and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other 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 all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding ~~Term~~ Revolving Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 3 contracts

Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)

Incremental Commitments. ~~(a)~~ At any time following the Closing Date, the Borrower may ~~at any time and~~ from time to time by written notice to the Administrative Agent elect to request ~~one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ an increase in to the existing Revolving Facility Commitments (~~a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (~~any such ~~Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~increase, the “Incremental ~~Term Loans” and, collectively with any~~ Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an~~ Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental ~~Facility~~Term Facility Commitments” and ~~collectively~~together with the Incremental Revolving Facility Commitments, if any, the “Incremental ~~Facilities~~Commitments”~~) 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~~amount, 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 provided thereunder (which Tranche shall be a new Tranche (i.e.collectively, not ~~the same as any existing Tranche of Incremental Term Loans~~to exceed $350.0 million, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loansor, in each case, ~~taken~~ 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 number of days as ~~a whole, that are not materially more favorable~~ may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the ~~lenders providing such Incremental Term Loans than~~ Administrative Agent. The Borrower shall notify the ~~provisions applicable to~~ Administrative Agent in writing of the ~~existing Term Loans~~ identity of each Revolving Facility Lender or ~~as are otherwise~~ other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ~~(ix)~~ and in the ~~terms and provisions~~ case of any ~~Revolving Commitment Increase shall be identical~~ Person committing 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 satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving ~~Loans (and all interest~~Facility Commitment, 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 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, (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 such ~~consent, if any,~~ consent would be required ~~under Section 13.04(b) for~~ with regard to an assignment ~~of Loans~~ to such ~~Person) or other Eligible Transferee which agrees~~ Person pursuant to ~~provide an Incremental Commitment~~ Section 9.04, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental 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. 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 (“Incremental Term Loans”) shall ~~execute~~ be made on such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and ~~deliver~~ Incremental Term Loans; (ii) [reserved]; (iii) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower 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 the register, each of which shall be reasonably satisfactory to the Administrative Agent an 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 ~~Amendment~~ Commitments; and (~~which~~ vi) the Borrower and its Affiliates shall not ~~require~~ be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans. 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 terms of the Incremental Commitments and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 3 contracts

Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, after the Closing Date, by written notice to the Administrative Agent from time to time, request Incremental Revolving Commitments in an amount not to exceed the Incremental Amount at the time ~~request~~ such Incremental Revolving Commitments are established from one or more Incremental Revolving Lenders (~~or one or more Eligible Transferees who will become Lenders~~which may include any existing Lender) willing to provide ~~an increase in~~ such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount) and (ii) the date on which such Incremental Revolving Commitments are requested to become effective (the “~~Revolving Commitment Increase~~Increased Amount Date”)~~, one or more additional Tranches of~~ . All Incremental Revolving Commitments ~~(an “Additional/Replacement~~ shall be commitments to make additional Revolving ~~Commitment”) or Incremental Term Loan Commitments~~ Loans (such ~~Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~additional Revolving Loans, the “Incremental ~~Term~~ Revolving Facility Loans~~” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities~~”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as ~~each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 having the same guarantees 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 ranking pari passu in right of payment and of security ~~with~~ with), and forming a single Class 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~~ pursuant to the ~~Additional/Replacement~~ Commitments in effect on the Closing Date (the “Initial Revolving ~~Commitments shall have~~ Facility Loans”) or a ~~maturity date~~ then existing Class 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 Extended 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Revolving 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 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require~~ reasonably specify to evidence the ~~consent~~ Incremental Revolving Commitment of ~~any other~~ such Incremental Revolving Lender). Each party hereto hereby agrees that, ~~with~~ 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 of the Incremental ~~Commitment~~ Revolving Commitments evidenced thereby as provided ~~therein~~ for in Section 9.08(e). Any amendment to ~~occur on~~ this Agreement or any other Loan Document that is necessary to effect the ~~date on which (w) a fully executed copy~~ provisions of this Section 2.21 and any such ~~Incremental Amendment~~ collateral and other documentation shall ~~have been delivered to the Administrative Agent, (x) all fees required to~~ be ~~paid~~ deemed “Loan Documents” hereunder and may be memorialized 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~~ writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Commitment shall become effective under 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: 2.21 unless (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 remain 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 (iii) on the date of such effectiveness, to the ~~making~~ extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such ~~new~~ date and executed by a Responsible Officer of the Borrower and (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 ~~Term~~ 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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with one or more Classes of the then existing 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 all Loans in respect of Incremental Commitments, ~~and notwithstanding~~ 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 effect the foregoing. (e) Notwithstanding anything to the contrary ~~set forth~~ in Section ~~2.09~~2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), ~~such new Incremental Term Loans shall be added~~ pursuant to ~~(and form part of) each Borrowing~~ one or more offers made from time to time by the Borrower to all Lenders of ~~outstanding Term Loans~~ any Class of ~~the applicable Tranche~~ Revolving Commitments, on a pro rata basis (based on the ~~relative sizes~~ aggregate outstanding Revolving Commitments under such 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 Commitments of such Class and to otherwise modify the terms of such Lender’s Commitments of such Class pursuant to the terms of the ~~various outstanding Borrowings~~relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments). For the avoidance of doubt, so 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 Revolving Commitments, that ~~each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans~~ all of the ~~respective Tranche (after giving effect to the incurrence~~ Revolving Commitments of such ~~new Incremental Term Loans pursuant~~ Class are offered to ~~Section 2.01(b)) on a pro rata basis. To~~ be extended for the ~~extent the provisions~~ same amount 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 Rate Loans of such Tranche, it is acknowledged time and that the ~~effect thereof may result in~~ interest rate changes and fees payable with respect to such ~~new~~ 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 Loans having irregular Interest Periods~~ Commitment for such Lender (~~i.e.~~such extended Revolving Commitment, an ~~Interest Period~~ “Extended Revolving Commitment”, and the Revolving Loans made thereunder “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that ~~began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on~~ the ~~last day of such Interest Period)~~Extended Revolving Commitment shall be extended, which ~~irregular interest periods~~ shall be ~~permitted notwithstanding anything~~ a date not earlier than five Business Days after the date on which notice is delivered to ~~the contrary in this Agreement. All determinations by any~~ the Administrative Agent of (or such shorter period agreed to by the ~~LIBO Rate,~~ Administrative Agent in ~~such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~its reasonable discretion). (df) ~~Subject~~ The Borrower and each Extending Lender shall execute and deliver to ~~compliance with~~ the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Revolving Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable ~~requirements~~ Extended Revolving Commitments; provided, that (i) except as to fees (which fees shall be determined by the Borrower and set forth in ~~this Section 2.15~~the Pro Rata Extension Offer), 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: Extended Revolving Commitment shall have (ix) the ~~Lenders with respect~~ same terms as an existing Class of Revolving Commitments or (y) have such other terms as shall be reasonably satisfactory to the ~~relevant series of Term Loans and/or~~ Administrative Agent and (ii) any Extended Revolving Commitments ~~being extended, repriced or refinanced are offered the opportunity to~~ may participate ~~in such transaction~~ 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 on terms of the ~~same terms~~Extended Revolving 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~~and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving 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 Commitments in the manner specified in such Incremental Assignment Agreement, including upon effectiveness of such Extended Revolving Commitment or upon or prior to the maturity date for any Class of Revolving Commitment. (g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Revolving Commitment will be automatically designated an Extended Revolving Commitment. For purposes of this Agreement and the other Loan Documents, such Extending Lender will be deemed to have an Incremental Commitment having the terms of such Extended Revolving 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 Revolving Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Revolving 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 Revolving Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the ~~amount~~ case of over participation) (including the extension of any ~~Incremental Term Loans does not exceed~~ Extended Revolving Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time other than notice to the ~~sum~~ Administrative Agent of ~~(x)~~ such Extension and the ~~principal amount~~ terms of the Extended Revolving Commitment implemented thereby pursuant to the applicable ~~Term Loans effectively being extended, repriced or refinanced~~Incremental Assumption Agreement, (yv) ~~fees~~ all Extended Revolving Commitments and ~~expenses~~ 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 (~~including~~ vi) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving 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 ~~prepayment premium, penalties or other call protection) related~~ Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such ~~extension~~Extension, ~~repricing or refinancing~~including, without limitation, timing, rounding 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 Loansother adjustments.

Appears in 3 contracts

Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)

Incremental Commitments. (a1) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, request ~~one~~ Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class or ~~more Lenders~~ the establishment of a new Class of Extended Revolving Commitments, as applicable, in an aggregate amount (or 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 $600,000,000 from one or more Eligible ~~Transferees who will become Lenders)~~ Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to ~~provide an increase~~ participate in ~~Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ any such Incremental Term Loan ~~Commitments (~~or additional Revolving Commitment without its consent) and shall be subject to such ~~Term Loans incurred~~ consents, if any, as would be required in connection ~~therewith, each,~~ with an ~~“Incremental~~ assignment of a Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 Revolving Commitment, as applicable, ~~pursuant~~ to an such Person) willing to provide such Incremental ~~Facility on~~ Term Loans and/or additional Revolving Commitments, as the ~~date of the incurrence thereof~~ case may be, in their sole discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or additional Revolving Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in a ~~new Tranche~~ minimum amount of $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), (~~i.e., not~~ ii) (x) in the ~~same as any existing Tranche~~ case of Incremental Term ~~Loans~~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 ~~other~~ a new Class of Term ~~Loans)~~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 ~~requirements~~ 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 or additional Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of ~~Section 2.15(c) are satisfied), which designation shall be set forth in~~ the applicable Incremental ~~Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ Term Loans and/or additional Revolving Commitments; provided that: (i) any additional Revolving Commitments shall have the same terms as ~~each other Tranche of~~ 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 ~~as in effect immediately prior to the effectiveness~~ shall not be guaranteed by any Subsidiaries of the ~~relevant Incremental Amendment, except as to purpose~~ Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (~~which is subject to~~ and no additional collateral) securing the ~~requirements~~ then existing Obligations; (iii) the Maturity Date of ~~the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that 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 ~~Term Loans~~ then Latest Maturity Date ~~as of the date such Indebtedness was incurred~~ and (b) a the Weighted Average Life to Maturity of ~~no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding~~ any Incremental Term Loans 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 shall be no shorter than the ~~then longest~~ remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans, ; (IIiv) no Incremental Term Loan shall participate on a greater than pro rata basis with the ~~Effective Yield applicable to such Tranche of~~ then outstanding Term Loans in any mandatory prepayment; (v) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may ~~differ from~~ 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 ~~to the then outstanding Tranches~~ existing Class of Term Loans); (vi) subject to the above, ~~with the Effective Yield applicable thereto~~ any Incremental Term Loans and Extended Revolving Commitments shall be on terms and pursuant to documentation to be ~~specified in~~ determined by the ~~respective~~ Borrower and the Lenders providing such Incremental ~~Amendment~~Term Loan; ~~provided, however,~~ provided that, ~~solely with respect~~ the terms applicable to ~~any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for~~ any such Incremental Term Loans ~~exceeds~~ or Extended Revolving Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after 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 (in accordance with the requirements of the definition of “Applicable Margin”Latest Maturity Date) 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each caseare not, taken as a whole, ~~that are not~~ materially more ~~favorable~~ restrictive to the ~~lenders providing such Incremental Term Loans~~ Borrower and its Restricted Subsidiaries, than the ~~provisions~~ terms applicable to the ~~existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms~~ then outstanding Commitments 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 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 determined by the 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, Borrower (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) except to the extent 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 that this Agreement is amended (which shall not require the consent of any ~~other~~ Lender~~), with~~ ) to incorporate such more restrictive provisions for the ~~effectiveness~~ benefit 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 then existing 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 remain 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 (~~iii~~vii) subject to Section 1.10, no Incremental Term Loan Commitment or additional Revolving Commitment shall become effective under this Section 2.01(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 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 ~~date~~ incurrence of Indebtedness thereunder (assuming, in the ~~making~~ case of Incremental Term Loan Commitments, that such ~~new Incremental~~ commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (iv) 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, ~~and notwithstanding anything~~ the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the ~~contrary set forth in Section 2.09,~~ Borrowings of such ~~new Incremental Term Loans shall be added to (and form part of) each Borrowing~~ Class are held by the Lenders of ~~outstanding Term Loans of the applicable Tranche~~ such Class on a pro rata basis ~~(based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under~~ in accordance with the respective ~~Tranche~~ amount of ~~Term Loans participates in each outstanding Borrowing of~~ Revolving Commitments or Term Loans of ~~the respective Tranche (after giving effect to the incurrence of~~ such 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 Rate 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 Rate 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 Class held by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoeach Lender. (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 3 contracts

Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)

Incremental Commitments. (a) The Borrower ~~may at~~ or any ~~time and~~ Co-Borrower may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower or such Co-Borrower, ~~when taken together with any~~ at the time of incurrence of ~~Permitted Pari Passu Notes~~the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant~~ as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to ~~Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y)~~ make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans ~~than~~ on the ~~provisions applicable to~~ same terms as the ~~existing Term~~ 2021 Revolving Loans or ~~as are otherwise reasonably satisfactory~~ (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 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 2021 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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B-1 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 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, (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 “Other 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,~~ The Borrower, ~~the Administrative Agent~~ each applicable Co-Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall have the same terms as the Term B-1 Loans or 2021 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 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 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 such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2021 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-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 ~~require~~ exceed 0.50%; provided that, to the extent any portion of the Term 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 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-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; (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 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, such Previously Absent Financial Maintenance Covenant shall 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 other ~~Lender)~~party hereto. Each party hereto hereby agrees that, ~~with~~ 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 ~~Commitment~~ Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided ~~therein~~ for in Section 9.08(e). Any amendment to ~~occur on~~ this Agreement or any other Loan Document that is necessary to effect the ~~date on which (w) a fully executed copy~~ provisions of this Section 2.21 and any such ~~Incremental Amendment~~ collateral and other documentation shall ~~have been delivered to the Administrative Agent, (x) all fees required to~~ be ~~paid~~ deemed “Loan Documents” hereunder and may be memorialized 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~~ writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given~~ the extent required by the Administrative Agent, 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ SOFR Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments 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.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. (a) The Borrower may ~~at any time and~~ from time to ~~time request one or more Lenders (or one or more Eligible Transferees who will become Lenders)~~ time, by written notice to ~~provide an increase in Revolving Commitments~~ the Credit Facility Agent (a “~~Revolving~~ Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, as applicable (each, a “Working Capital Commitment Increase”), ~~one or more additional Tranches of Revolving Commitments (~~up to an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 not to exceed the maximum 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 Working Capital Debt permitted pursuant to Section ~~10.04(xxvii)(1~~6.2(a) ~~on such date,~~ (xWorking Capital Debt) ~~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 Common Terms Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 Working Capital Commitment Increase Notice shall specify (i) the ~~time~~ date on which the Borrower proposes that such Working Capital Commitment Increase shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Credit Facility Agent, (ii) the amounts of the ~~provision~~ Working Capital Commitment Increase (including any proposed increase in Non-Fronting Limit or Fronting Limit of ~~Incremental Commitments pursuant to this Section 2.15~~an Issuing Bank) and (iii) the identity of each Working Capital Lender, ~~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 such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person)~~ or other Person that is an Eligible ~~Transferee which agrees to provide an Incremental Commitment~~ Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, as applicable (each, an “Incremental Lender/Issuing Bank”) ~~shall execute and deliver~~ to whom the ~~Administrative Agent an Incremental Amendment (which shall not require the consent of~~ Borrower proposes any ~~other Lender), with the effectiveness~~ portion of the ~~Incremental~~ Working Capital Commitment ~~provided therein to occur on~~ Increase be allocated and the ~~date on which (w) a fully executed copy~~ amounts 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 limitationallocations; provided that, any ~~agreed upon upfront~~ Working Capital Lender, Issuing Bank or ~~arrangement fees owing~~ other Person approached to ~~the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y)~~ provide 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 or a portion of the ~~affected Lenders~~ Working Capital Commitment Increase may elect or decline, in its sole and ~~(ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender~~absolute discretion, to be in conformity with the 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 Lenderparticipate. (c) ~~Notwithstanding anything~~ Each Working Capital Commitment Increase shall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the ~~contrary contained above in this Section 2.15~~Borrower, the ~~Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to~~ Credit Facility Agent and each Incremental ~~Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that,~~ Lender/Issuing Bank (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: no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental ~~Term Loans~~ Lender/Issuing Bank, (ii) amendments required to ~~be made pursuant~~ reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to ~~such~~ this Agreement. The effectiveness of any Incremental Amendment shall ~~have~~ be subject solely to the ~~same Borrower~~conditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such date of effectiveness before or after giving effect to such Working Capital Commitment Increase, (B) each Incremental Lender that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the ~~same Maturity~~ legal opinions provided to the Credit Facility Agent pursuant to Section 4.1(f) (Conditions to Closing Date and Initial Advance – Opinions from Counsel) of the ~~same Applicable Margins as~~ Common Terms Agreement, (C) since the ~~Tranche~~ time of ~~Term Loans~~ the financial statements most recently provided pursuant to ~~which~~ Section 10.1(a) (Accounting, Financial and Other Information) of the ~~new~~ Common Terms Agreement no developments have occurred which, individually or in the aggregate have resulted in or could reasonably be expected to result in a Material Adverse Effect, (D) each Incremental ~~Term Loans are being added;~~ Lender/Issuing Bank who is not already a Working Capital Lender or Issuing Bank is reasonably acceptable to the Credit Facility Agent and each Issuing Bank and (iiE) the ~~new Incremental Term Loans shall have~~ Intercreditor Agent has received, at least three (3) Business Days before the same Scheduled Repayment Dates as then remain 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 (iii) on the date of the making effectiveness of such ~~new~~ Incremental ~~Term Loans~~Amendment, ~~and notwithstanding anything to~~ a certificate from the ~~contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to~~ Borrower that (~~and form part of~~1) identifies each ~~Borrowing~~ holder of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche Working Capital Commitments (after giving effect to the ~~incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)~~applicable Working Capital Commitment Increase) on and (2) attaches a ~~pro rata basis. To the extent the provisions~~ copy of the ~~preceding clause (iii) require that~~ proposed Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAmendment. (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 3 contracts

Sources: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)

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. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 ~~Rate~~ 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 ~~Rate~~ 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 any the Administrative Agent of the LIBO ~~Rate~~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. (a) The U.S. Borrower ~~may at any time and~~ or the Dutch Borrower may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans ~~incurred~~ and/or Incremental Revolving Facility Loans, as the case may be, in ~~connection therewith, each, an “~~their own discretion; provided that each Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and,~~ Facility Lender shall be subject to the ~~terms and conditions contained in this Agreement and in~~ approval of the ~~relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (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 and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $1.0 million and a ~~new Tranche~~ minimum amount of $25.0 million or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other~~ and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and (iii) (a) whether such Incremental Term ~~Loans), unless the requirements of Section 2.15(c)~~ Loan Commitments are ~~satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ to be ~~incurred as a new~~ Tranche ~~of Incremental~~ C-1 Term Loan Commitments, 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 Tranche C-1 Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 C-2 Term Loans and the ~~Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding~~ Tranche C-4 Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Canadian Tranche Commitments, ~~(II)~~ European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the ~~Effective Yield applicable to such~~ Canadian Tranche ~~of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term~~ Revolving Facility Loans, 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 denominated in Dollars, if the 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 (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 European Tranche Revolving Facility Loans and ~~the corresponding Effective Yield on such then outstanding Initial Term~~ U.S. Tranche Revolving Facility Loans ~~is equal to 0.50%~~ (~~the~~ “~~MFN Pricing Test~~Other Revolving Facility Loans”); 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The U.S. Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided that (i) the Other Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the 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 have the same terms as the Tranche C-1 Term Loans, Tranche C-2 Term Loans or Tranche C-4 Term Loans, as applicable, (ii) the final maturity date of (a) any Other Term Loans shall be no earlier than the 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, (iii) the 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 Revolving Facility Maturity Date; provided further that the interest rate margin (which shall ~~not require the consent~~ 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 Lender~~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 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 Term Loans and/or 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 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 ~~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~~ OID being equated to the ~~Administrative Agent, (x) all fees required to be paid~~ interest rates 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~~ 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 ~~extent it served~~ 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 ~~arranger~~ 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 ~~Incremental Commitments~~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)~~, (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~~Assumption Agreement. Each of the parties hereto hereby agrees that, ~~and at such time~~upon the effectiveness of any Incremental Assumption Agreement, ~~(i) Schedule 2.01~~ this Agreement shall be ~~deemed modified~~ amended to the extent (but only to the extent) necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ 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 ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ 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, (~~not~~ 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 ~~be unreasonably withheld, delayed or conditioned),~~ the ~~parties~~ Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to ~~a given Incremental Amendment may specify therein~~ assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 ~~added to, an existing Tranche of~~ in Pro Forma Compliance after giving effect to such Incremental Term ~~Loans, in any case so long as the following requirements are satisfied: (i)~~ Loan Commitment and/or Incremental Revolving Facility Commitments and the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made ~~pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date~~ thereunder and the ~~same Applicable Margins~~ application of the proceeds therefrom as if made and applied on such date. (d) Each of the ~~Tranche of Term Loans~~ parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ~~which the new~~ ensure that all Incremental Term Loans ~~are being added;~~ and/or Incremental Revolving Facility Loans (~~ii) the new Incremental~~ other than Other Term Loans ~~shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans~~ or Other Revolving Facility Loans), when originally made, 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth included in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of)~~ each Borrowing of outstanding Term Loans of or Revolving Facility Loans under the ~~applicable~~ same Tranche on a pro rata ~~basis (based on~~ basis, and the ~~relative sizes~~ Borrowers agree that Section 2.17 shall apply to any conversion of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Eurocurrency Loans to ~~the then outstanding Borrowings of LIBO~~ ABR Loans or Base Rate 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)

Incremental Commitments. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate~~ 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 ~~LIBO Rate~~ 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 any the Administrative Agent of ~~the LIBO Rate~~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. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans~~ at the time such Incremental Commitments are committed to) from one 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 more Incremental Term ~~Loan Commitments being provided thereunder~~ Lenders and/or Incremental Revolving Facility Lenders (which ~~Tranche shall be a new Tranche (i.e., not the same as~~ may include any existing ~~Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c~~Lender) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ willing to ~~be incurred as a new Tranche of Incremental Term Loans,~~ provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall ~~have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is~~ be subject to the ~~requirements~~ approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ and, to the ~~consent of~~ extent the ~~Administrative Agent~~same would be required for an assignment under Section 9.04, ~~each~~ the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) 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. 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, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be ~~unreasonably withheld~~ (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or ~~delayed~~(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 ~~extent such consent, if any, would be required under Section 13.04(b) for an assignment of~~ Initial Revolving Loans ~~to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ (~~each, an~~ “~~Incremental Lender~~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 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”). (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental ~~Amendment (which~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 in right of security with the Term B Loans, (iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B 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 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 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 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) ~~all fees required~~ substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ Agent, (vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, 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”) by more than 0.50% 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 extent ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ 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, (iviii) ~~Schedule 2.01~~ (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 (ix) 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given Incremental Amendment~~ 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of,~~ 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. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including any prepayment premium, penalties or~~ have such other ~~call protection) related~~ terms as shall be reasonably satisfactory to ~~such extension, repricing or refinancing~~the Administrative Agent, and (zv) ~~fees and expenses~~ any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (~~including~~ but not greater than a pro rata basis) in any ~~upfront fees~~voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, ~~original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related~~ this Agreement shall be amended to the ~~establishment~~ extent (but only to the extent) necessary to reflect the existence and ~~incurrence~~ 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 ~~Incremental~~ 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 ~~Loans.~~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. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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~~ at the ~~date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based~~ time such 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 Commitments are established from one or more Incremental Term ~~Loan Commitments being provided thereunder~~ Lenders and/or Incremental Revolving Facility Lenders (which ~~Tranche shall be a new Tranche (i.e., not the same as~~ may include any existing ~~Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c~~Lender) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ willing to ~~be incurred as a new Tranche of Incremental Term Loans,~~ provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall ~~have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is~~ be subject to the ~~requirements~~ approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ and, to the ~~consent of~~ extent the ~~Administrative Agent~~same would be required for an assignment under Section 9.04, ~~each~~ the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) 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. 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, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be ~~unreasonably withheld~~ (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or ~~delayed~~(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 ~~extent such consent, if any, would be required under Section 13.04(b) for an assignment of~~ Initial Revolving Loans ~~to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ (~~each, an~~ “~~Incremental Lender~~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 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”). (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental ~~Amendment (which~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the same terms as the 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 (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 final maturity date of any Other Term Loans shall be no earlier than the 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 (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 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) ~~all fees required~~ substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 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 ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ 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; (iviii) ~~Schedule 2.01~~ 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 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 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 (x) 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clauses (b) and (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not~~ 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 ~~be unreasonably withheld~~the extent required by the Administrative Agent, ~~delayed or conditioned),~~ consistent with those delivered on the ~~parties~~ Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to ~~a given Incremental Amendment~~ the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including any prepayment premium, penalties or~~ have such other ~~call protection) related~~ terms as shall be reasonably satisfactory to ~~such extension, repricing or refinancing~~the Administrative Agent, and (zv) ~~fees and expenses~~ any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (~~including~~ but not greater than a pro rata basis) in any ~~upfront fees~~voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, ~~original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related~~ this Agreement shall be amended to the ~~establishment~~ extent (but only to the extent) necessary to reflect the existence and ~~incurrence~~ 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 ~~Incremental Term Loans.~~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. (a) The Borrower ~~may at~~ or any ~~time and from time to time request one or more Lenders~~ Subsidiary Loan Party (or ~~one or more Eligible Transferees who~~ Subsidiary that will substantially concurrently become ~~Lenders~~a Subsidiary Loan Party) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or may obtain Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to exceed 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 Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility ~~on the date of the incurrence thereof~~ Commitment shall ~~not exceed~~be subject, 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~~ extent the same would be required for an assignment under Section 9.04, to the approval 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~~ the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). The amount of the Incremental Term Loan Commitments ~~being provided thereunder (which Tranche~~ and/or Incremental Revolving Facility Commitments shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent). Such Incremental Commitments may, at the election of the Borrower, be (x) commitments to increase the principal amount of any existing Class of Term Loans or Term Facility Commitments by making term loans with terms identical to such outstanding Class of Term Loans or Term Facility Commitments or to increase the principal amount of any existing Class of Revolving Facility Commitments (provided that an increase to the Thai Baht Revolving Facility will require prior written consent from the Thai Baht Revolving Lenders) by providing revolving credit commitments with terms identical to such outstanding Class of Revolving Facility Commitments or (y) commitments to make a new ~~Tranche~~ tranche of Term Loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from any outstanding Class of Term Loans or commitments to make a new tranche of revolving credit commitments with pricing, maturity and/or other terms different from any outstanding Class of Revolving Facility Commitments. (~~i.e., not the same as any existing Tranche of~~ b) The Borrower and each Incremental Term ~~Loans,~~ Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan ~~Commitments or other~~ Commitment of such Incremental Term ~~Loans), unless~~ Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the ~~requirements~~ terms of ~~Section 2.15(c) are satisfied), which designation shall be set forth in~~ the applicable Incremental ~~Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ Term Loans and/or Incremental Revolving Facility Commitments; provided that: (i) any commitments to increase the principal amount of an existing Class of Term Loans and/or make additional Revolving Facility Loans of any Class shall have the same terms as ~~each other Tranche of~~ such Term Loans or the Revolving Facility Loans, respectively, and shall be documented as ~~in effect immediately prior~~ an increase to ~~the effectiveness~~ such Class of the 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 each new Tranche of Incremental existing Term Loans ~~shall be entitled~~ and/or Revolving Facility Commitments, as applicable, hereunder (it being understood that, if required to ~~share in mandatory prepayments~~ consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on ~~a ratable basis with~~ the applicable Revolving Facility being increased for all lenders under such Revolving Facility without the need for consent from any existing Lender, but additional upfront or 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 fees may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable payable to the lenders ~~providing~~ participating in such Incremental ~~Term~~ Revolving Facility without any requirement to pay such amounts to any existing Revolving Facility Lenders), (ii) any Incremental Loans than the provisions applicable to the 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 Term B Loans and the Initial Revolving Facility Loans, , (xiii) 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 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 maturing Tranche~~ Initial Term B Facility Maturity Date, (iv) the Weighted Average Life to Maturity of ~~outstanding Revolving~~ 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 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 and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis with respect to the Initial Term B Loans, other than in the case of a refinancing thereof) in any mandatory prepayments of any then-existing Class of Term Loan, (xivi) ~~any Tranche~~ (A) other than as set forth in clauses (ii), (iii), (iv), (vii) or (viii) of ~~the Additional/Replacement Revolving Commitments may have~~ this clause (b), all other terms ~~that may differ from those~~ of ~~other Tranches~~ any Incremental Term Loan, if not consistent with the 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 ~~Commitments, taken~~ Facility established as a ~~whole~~separate Class will provide for final maturity no earlier than, ~~that are not materially more favorable to~~ and require no scheduled mandatory commitment reduction prior to, the ~~Lenders providing~~ 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 ~~Commitments than~~ Facility or the ~~provisions applicable to the existing Revolving Commitments~~ obtaining of any commitment with respect thereto or ~~as are otherwise~~ (z) be reasonably satisfactory to the Administrative ~~Agent~~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 (~~xii~~1) ~~all~~ also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the Initial Revolving Facility Maturity Date), (vii) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Loans ~~and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower~~ shall be ~~Obligations of~~ determined by the Borrower ~~under this Agreement~~ and the ~~other~~ 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 ~~Credit Documents and~~ to such Initial Term B Loans shall be ~~secured~~ increased by an amount equal to the ~~Security Agreement~~positive difference (if any) between the Applicable Margin with respect to such Incremental Term Loan and the corresponding Applicable Margin applicable to the 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 ~~guaranteed under each relevant Guaranty,~~ (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period, (B) any Incremental Term Facility scheduled to mature on or after the date that is one year after the Initial Term B Facility Maturity Date, (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 ~~basis~~ with ~~all other~~ the Initial Term B Loans ~~secured by the Security Agreement~~ in right of payment and ~~guaranteed under such Guaranty Agreement~~ with respect to security and ~~shall not~~ that would otherwise 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, (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~~ MFN Provision; and (viii) there shall be no obligor in respect of ~~the relevant conditions set forth in this Agreement, make~~ any Incremental Term Loan Commitments or Incremental Revolving ~~Loans and/or Incremental Term Loans under~~ Facility Commitments that is not a Loan Party or the ~~Tranche specified in such Incremental Amendment as provided in Section 2.01(c)~~ Thai Borrower (with respect to ~~Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental~~ the Thai Baht 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 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 Facility 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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~~ the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) subject to Section 1.07 and only to the ~~contrary contained above in this~~ extent required by the Lenders providing such Incremental Facility, no Specified Event of Default shall have occurred and be continuing and (ii) 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 ~~2.15~~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 Section 5.10(d), 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 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 ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~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 respective date or for the respective period, 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), subject to customary “SunGard” limitations to the ~~parties to a given~~ extent the proceeds of any 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 Facility are being ~~added;~~ used to finance a Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement and (ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain 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 (iii) on the date of effectiveness of the ~~making~~ Incremental Assumption Agreement, no Specified Event of ~~such new Incremental Term Loans,~~ Default shall have occurred and ~~notwithstanding~~ be continuing. (d) Notwithstanding anything to the contrary ~~set forth in Section 2.09~~herein, ~~such new Incremental~~ (i) the initial Interest Period with respect to any Term ~~Loans shall be added to (and form part of) each~~ SOFR Borrowing or Eurocurrency Borrowing of ~~outstanding Term~~ Incremental Loans may, at Holdings’ option, be of ~~the applicable Tranche on~~ a ~~pro rata basis (based~~ duration that commences on the ~~relative sizes~~ date of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate Loans of such Tranche, it is acknowledged that the effect borrowing 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 Rate Loans of such Tranche and ~~which will end~~ 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), which irregular interest periods~~ Period shall be ~~permitted notwithstanding anything~~ the same as the Adjusted Term SOFR or Adjusted EURIBOR applicable to such other outstanding Term SOFR Borrowing or Eurocurrency Borrowing, as the ~~contrary~~ 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 ~~this Agreement. All determinations by any~~ respect of which the ~~Administrative Agent of~~ Borrower has made the ~~LIBO Rate~~election described in the preceding clause (i) shall be considered a single Term SOFR Borrowing or Eurocurrency Borrowing, ~~in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~as applicable. (de) ~~Subject~~ Notwithstanding anything herein to ~~compliance with~~ the ~~other applicable requirements set forth in this Section 2.15~~contrary, no Lender shall have any ~~new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of~~obligation to agree to increase its Commitment, ~~effecting a repricing of~~ or ~~a refinancing, in whole or in part without utilizing the capacity under~~ to provide 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~~ Loan Commitments or Incremental Revolving Facility Commitments, pursuant to this Section 2.21 and any election to do so shall be in 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 sole discretion of such ~~Incremental Term Loans~~Lender.

Appears in 2 contracts

Sources: Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.), Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.)

Incremental Commitments. ~~(a)~~ 3. The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ at the time of incurrence of ~~Permitted Pari Passu Notes~~the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant~~ as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to ~~Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y)~~ make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 Revolving Facility ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are requested to ~~the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~become effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms ~~and provisions of any Revolving Commitment Increase shall be identical to~~ as the Initial Revolving Loans ~~and~~ 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 ~~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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B 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 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, (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 “Other 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”). (ba) ~~At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B 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 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 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 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) ~~all fees required~~ substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ Agent, (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 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 ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ three months’ duration at such time, ~~(i) Schedule 2.01~~ and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be ~~deemed modified~~ 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; (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 (ix) 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 ~~revised Incremental Commitments~~ existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 and/or Incremental Revolving Facility Commitments evidenced thereby as provided ~~by an Incremental Lender~~ for in Section 9.08(e). Any amendment to this Agreement or ~~Incremental Lenders, as~~ any other Loan Document that is necessary to effect the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ provisions of this Section 2.21 and any such collateral and other documentation shall be ~~separate~~ deemed “Loan Documents” hereunder and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ 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, ~~delayed~~ no Incremental Term Loan Commitment or ~~conditioned)~~Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the ~~parties~~ 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 ~~given~~ Responsible Officer of the Borrower and (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 ~~Amendment~~ Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 Term Loans and Revolving Facility Loans. (c) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding d) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including~~ have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any ~~prepayment premium~~other terms that would affect the rights or duties of any Issuing Bank, ~~penalties or other call protection) related~~ such terms as shall be reasonably satisfactory to such ~~extension~~Issuing Bank, ~~repricing~~ (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or ~~refinancing,~~ 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 (zvi) ~~fees and expenses~~ any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (~~including~~ but not a greater than pro rata basis) than the Term B Loans in any ~~upfront fees~~mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, ~~original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related~~ this Agreement shall be amended to the ~~establishment and incurrence of such Incremental Term Loans.~~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. (a) The Borrower ~~may at any time and~~ may, from time to ~~time~~ time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments (together with delayed draw term loan commitments (“Incremental Delayed Draw Term Loan Commitments” and the Loans thereunder, the “Incremental Delayed Draw Term Loans”), the “Incremental Term Loan Commitments” and the Loans provided thereunder, “Incremental Term Loans”) and/or additional Revolving Commitments, as applicable (“Incremental Revolving Commitment” and together with the Incremental Term Loan Commitments, “Incremental Commitments”, and collectively with Incremental Term Loan Commitments and Incremental Term Loans, “Incremental Facilities”), from one or more Lenders (in the sole discretion of such Lenders) or ~~one or more~~ Eligible ~~Transferees~~ Assignees who will become ~~Lenders)~~ Lenders (in each case, subject to ~~provide an increase~~ the consent of Informa Group Holdings Limited in ~~Revolving Commitments~~ its sole discretion (solely so long as Informa Group Holdings Limited or any of its Affiliates is a ~~“Revolving Commitment Increase”~~Lender)~~, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith~~, each, an “~~Incremental Term Loan” and~~Additional Lender”), ~~collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each,~~ in an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 up to the sum of (x) the greater of (A) $125,000,000 and (B) 100.0% of Consolidated EBITDA for the most recent Measurement Period calculated on a Pro Forma Basis (in each case less any ~~Loan or Commitment~~such amount previously utilized to incur any Incremental Equivalent Debt) plus (y) all voluntary prepayments, debt buy-backs (including, in the case of loan buy-backs, the cash amount of loans repurchased), and voluntary permanent commitment reductions and payments utilizing Section 3.7(b), 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 any Incremental Equivalent Debt (including voluntary prepayments made at a discount to par, with credit given for the ~~corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (~~cash amount of the ~~“MFN Pricing Test”~~debt repurchased)~~; and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I~~, payments utilizing Section 3.7(b) and ~~(II)) that may differ from those~~ voluntary permanent commitment reductions of ~~other Tranches of Term Loans, including, without limitation, as~~ the Revolving Facility and any Incremental Revolving Commitments prior to the ~~application~~ date of ~~optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans~~any such incurrence, in each case, ~~taken as a whole, that are not materially more favorable~~ to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 extent not funded with the ~~Initial Revolving Loans~~proceeds of long term debt (other than revolving Indebtedness) (in each case, other than any prepayments, buy-backs or reductions of Indebtedness outstanding in reliance on clause (xz)) ~~the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ,~~ plus (z) an additional unlimited principal amount 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 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 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, (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 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 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 incurrence of such Incremental ~~Amendment shall have been delivered to the Administrative Agent,~~ Commitments (~~x) all fees required to be paid in connection therewith~~ with any Incremental Delayed Draw Term Loan Commitments being deemed incurred at the time of ~~such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing~~ establishment) and immediately after giving effect thereto and 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 use of the ~~affected Lenders and~~ proceeds thereof (~~ii) to~~ assuming the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 conditionedfull utilization thereof), 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: Consolidated Senior Secured Net Leverage Ratio (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 remain 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 (calculated 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (Pro Forma Basis after giving effect to the incurrence of such ~~new~~ Incremental Facility (other than any amount incurred simultaneously therewith under clause (x) and/or (y) above) and any Acquisition or Investment consummated in connection therewith, and assuming for purposes of this calculation that (a) the full committed amount of any Incremental Commitment (including any Incremental Delayed Draw Term ~~Loans pursuant~~ Loan Commitments) then being incurred is fully drawn and (b) the cash proceeds of such Incremental Commitment then being incurred shall not be netted from Indebtedness for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio) shall be less than or equal to ~~Section 2.01(b~~2.50:1.00 for the most recently ended Measurement Period (the sum of clauses (x), (y) and (z), the “Available Incremental Amount”); provided that all or any portion of any Incremental Commitments or Incremental Equivalent Debt incurred in reliance on clause (x) and/or clause (y) shall be reclassified as the Borrower may elect from time to time as incurred under clause (z) if the Consolidated Senior Secured Net Leverage Ratio would not have exceeded 2.50:1.00 on a ~~pro rata basis. To~~ Pro Forma Basis for the ~~extent~~ most recently ended Measurement Period at the ~~provisions~~ time of such proposed reclassification, and if the ~~preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add~~ Consolidated Senior Secured Net Leverage Ratio does not exceed 2.50:1.00 on a Pro Forma Basis at the end of any subsequent Measurement Period after the initial incurrence of such Incremental ~~Term Loans~~ Commitments or Incremental Equivalent Debt, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. Each such person providing an Incremental Revolving Commitment, if not already a Lender hereunder, shall be subject to the ~~then outstanding Borrowings~~ approval of LIBO Rate 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 Rate 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 any the Administrative Agent of and the ~~LIBO Rate~~Swingline Lender (which approvals shall not be unreasonably withheld, 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 conditioned or delayed). Such notice shall 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~~ amount of the ~~relevant series~~ Incremental Facility being requested (which shall be in minimum increments of ~~Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on~~ $1,000,000 and a ~~pro rata basis (~~minimum amount of $10,000,000) and ~~on the same terms) and~~ (ii) the ~~amount of any~~ date on which such Incremental ~~Term Loans does~~ Facility is requested to become effective (which shall not ~~exceed~~ be less than ten (10) Business Days nor more than sixty (60) calendar days after 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 date of such notice, unless otherwise agreed to by the Administrative Agent). All Incremental ~~Term Loans~~Facilities shall be made in Dollars.

Appears in 2 contracts

Sources: Credit Agreement (TechTarget, Inc.), Credit Agreement (TechTarget Holdings Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans~~ at the time such Incremental Commitments are committed to) from one 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 more Incremental Term ~~Loan Commitments being provided thereunder~~ Lenders and/or Incremental Revolving Facility Lenders (which ~~Tranche shall be a new Tranche (i.e., not the same as~~ may include any existing ~~Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c~~Lender) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ willing to ~~be incurred as a new Tranche of Incremental Term Loans,~~ provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall ~~have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is~~ be subject to the ~~requirements~~ approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ and, to the ~~consent of~~ extent the ~~Administrative Agent~~same would be required for an assignment under Section 9.04, ~~each~~ the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) 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. 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, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be ~~unreasonably withheld~~ (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or ~~delayed~~(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 ~~extent such consent, if any, would be required under Section 13.04(b) for an assignment of~~ Initial Revolving Loans ~~to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ (~~each, an~~ “~~Incremental Lender~~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 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”). (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental ~~Amendment (which~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 in right of security with the Term B Loans, (iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B 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 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 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 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) ~~all fees required~~ substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ Agent, (vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, 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”) by more than 0.50% then 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 the Effective Date 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 ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ 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, (iviii) ~~Schedule 2.01~~ (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 (ix) 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given Incremental Amendment~~ 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of,~~ 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. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including any prepayment premium, penalties or~~ have such other ~~call protection) related~~ terms as shall be reasonably satisfactory to ~~such extension, repricing or refinancing~~the Administrative Agent, and (zv) ~~fees and expenses~~ any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (~~including~~ but not greater than a pro rata basis) in any ~~upfront fees~~voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, ~~original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related~~ this Agreement shall be amended to the ~~establishment~~ extent (but only to the extent) necessary to reflect the existence and ~~incurrence~~ 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 ~~Incremental Term Loans~~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. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ 20242025 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding ~~Initial~~ 20242025 Term Loans shall be increased as of such date (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~~ 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~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 ~~LIBO Rate~~ 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 ~~LIBO Rate~~ 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 any the Administrative Agent of ~~the LIBO Rate~~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. (a) The Borrower may at by written notice to the Administrative Agent elect to request (x) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (each, an “Incremental Revolving Commitment”, and any ~~time and from time to time request~~ such increase, an “Incremental Revolving Facility”) and/or (y) the establishment of one or more ~~Lenders~~ new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term ~~Loan~~Commitment” ~~and, collectively~~(and together with the Incremental Revolving Commitments, the “Incremental ~~Term Loans” and~~Commitments”), ~~collectively with any Revolving Commitment Increase~~ and any ~~Additional/Replacement Revolving Commitment, each~~such increase, an “Incremental Term Facility” ~~and collectively~~and, together with any Incremental Revolving Facility, the “Incremental Facilities”) ), by an aggregate amount not in excess of the Incremental Available Amount; provided that, with respect 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~~ Term Commitment the primary purpose of which is to finance a ~~given~~ Permitted Acquisition or similar Investment permitted by this Agreement, whose consummation is not conditioned on the availability of, or on obtaining, financing, the Incremental ~~Amendment shall~~ Ratio Amount may, at the Borrower’s option, be in tested on a ~~minimum aggregate amount for all Lenders which provide~~ pro forma basis giving effect to 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~~ Permitted Acquisition or ~~Commitment~~similar Investment, as applicable, ~~pursuant to an Incremental Facility on~~ at the ~~date of~~ time the ~~incurrence thereof shall not exceed~~definitive agreements for such Permitted Acquisition or similar Investment, ~~when taken together with any incurrence of Permitted Pari Passu Notes~~as applicable, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x)~~ are entered into rather than at the ~~then-remaining Fixed Incremental Amount as of the date~~ time 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 (and, in connection with any ~~Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization~~ subsequent calculation of such ~~Tranche~~ ratio or any incurrence ratio under Section 7.01(a)(xxiii) prior to the consummation or termination of ~~Incremental Term Loans may differ~~such Permitted Acquisition or similar Investment, ~~so long as~~as applicable, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 ratio 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~~ a pro forma basis 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 Permitted Acquisition or as are otherwise reasonably 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 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, (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 Tranchesimilar Investment, as applicable, ~~for all purposes~~ and other transactions in connection therewith (including any incurrence of ~~this Agreement~~ Indebtedness and the ~~other applicable Credit Documents~~ use of proceeds thereof)). Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent in its sole discretion) and (~~xiv~~ii) the identity of each Lender to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment ~~Requirements are satisfied~~shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental Commitments set forth in above). (b) ~~At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (~~The proceeds in connection with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent 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 any Incremental Commitment ~~(each~~may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, ~~an “Incremental Lender”) shall execute~~ including the financing of Permitted Acquisitions and ~~deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of~~ other Investments and any other ~~Lender), with~~ use not prohibited by 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 LenderLoan Documents. (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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 (Griffon Corp), Credit Agreement (Griffon Corp)

Incremental Commitments. (a) The Borrower ~~may at~~ or any ~~time and~~ Co-Borrower may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or, at the option of the ~~incurrence thereof shall not exceed~~Borrower or such Co-Borrower, ~~when taken together with any~~ at the time of incurrence of ~~Permitted Pari Passu Notes~~the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~Permitted Pari Passu Loans or Permitted Junior Debt pursuant~~ as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to ~~Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y)~~ make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans ~~than~~ on the ~~provisions applicable to~~ same terms as the ~~existing Term~~ 2024 Revolving Loans or ~~as are otherwise reasonably satisfactory~~ (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 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 2024 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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B-1 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 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, (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 “Other 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,~~ The Borrower, ~~the Administrative Agent~~ each applicable Co-Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B-1 Loans and/or 2024 Revolving Loans shall have the same terms as the Term B-1 Loans or 2024 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 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 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 such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 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 other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 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-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 ~~require~~ exceed 0.50%; provided that, to the extent any portion of the Term 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 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-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; (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 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, such Previously Absent Financial Maintenance Covenant shall 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 other ~~Lender)~~party hereto. Each party hereto hereby agrees that, ~~with~~ 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 ~~Commitment~~ Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided ~~therein~~ for in Section 9.08(e). Any amendment to ~~occur on~~ this Agreement or any other Loan Document that is necessary to effect the ~~date on which (w) a fully executed copy~~ provisions of this Section 2.21 and any such ~~Incremental Amendment~~ collateral and other documentation shall ~~have been delivered to the Administrative Agent, (x) all fees required to~~ be ~~paid~~ deemed “Loan Documents” hereunder and may be memorialized 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~~ writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the ~~parties~~ 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 ~~a given~~ the extent required by the Administrative Agent, 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 ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ SOFR Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments 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.ha

Appears in 2 contracts

Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)

Appears in 2 contracts

Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)

Incremental Commitments. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Initial2024 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding ~~Initial~~ Initial2024 Term Loans shall be increased as of such date (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~~ 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~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 ~~LIBO Rate~~ 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 ~~LIBO Rate~~ 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 any the Administrative Agent of ~~the LIBO Rate~~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. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Facility Lenders (~~or one or more Eligible Transferees who will become Lenders~~which may include any existing Lender) willing to provide ~~an increase~~ such Incremental Revolving Facility Loans in their own discretion; provided that each Incremental Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, Facility Lender shall be subject to the ~~terms~~ approval of the Administrative Agent and ~~conditions contained in this Agreement and in the relevant~~ each L/C Issuer (neither of which approvals shall be unreasonably withheld) unless such Incremental ~~Amendment~~Revolving Facility Lender is a Lender, ~~provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) ~~no Lender~~ the amount of the Incremental Revolving Facility Commitments being requested (which shall be ~~obligated~~ in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to ~~provide an~~ the remaining Incremental ~~Facility as a result of any such request by Borrower~~Amount), (ii) ~~any Lender~~ the date on which such Incremental Revolving Facility Commitments are requested to become effective (~~including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without~~ the ~~consent of any other Lender~~“Increased Amount Date”), and (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 whether such Incremental Revolving Facility ~~thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the~~ Commitments are to be Revolving Facility Commitments or commitments to make revolving loans up to an aggregate principal amount of ~~any Loan or Commitment~~$10,000,000 under a “first-in, last-out” tranche on customary terms (referred to herein 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term “FILO Revolving Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Revolving Facility 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 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Revolving Facility Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided that (i) all Incremental Facility Loans that are additional Revolving Facility Loans shall have ~~been delivered~~ the 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 increased to equal the interest rate margins for FILO Revolving Loans, (xiii) ~~all fees required~~ the final maturity date of any FILO Revolving Loans shall be no earlier than the Revolving Facility Maturity Date, and (iv) the weighted average life to maturity of any FILO Revolving Loans shall be ~~paid~~ no shorter than the remaining weighted average life to maturity of the Revolving Facility 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 Revolving Facility Commitments evidenced thereby as provided for in ~~connection therewith at the time of~~ Section 10.01. Any such ~~effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to~~ deemed amendment may be memorialized in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the ~~extent~~ other parties hereto, it ~~served~~ 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 ~~arranger for~~ opinion of the ~~Incremental Commitments)~~Administrative Agent, ~~(y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in~~ to effect the provisions of this Section ~~2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender~~ 2.15, including the establishment of any “FILO Revolving Loan” commitments as ~~to the effectiveness of each Incremental Amendment~~a “first-in, 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderlast-out” tranche on customary terms. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Revolving Facility Commitment shall become effective under 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: 2.15 unless (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 remain 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 (iii) on the date of such effectiveness, the ~~making of such new Incremental Term Loans, and notwithstanding anything to the contrary~~ conditions set forth in paragraphs (b) and (c) of Section ~~2.09, such new Incremental Term Loans~~ 5.01 shall be ~~added~~ 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 have occurred and be continuing or would result therefrom and (iv) before and after giving effect to any Incremental Revolving Facility Commitment (including any FILO Revolving Loan), the 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 (including any FILO Revolving 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 all Incremental Revolving Facility Loans (other than FILO Revolving Loans) in the form ~~part of)~~ of additional Revolving Facility Loans, when originally made, are included in each Borrowing of outstanding ~~Term~~ Revolving Facility Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 3.05 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurodollar Rate Loans to ~~the then outstanding Borrowings of LIBO~~ Base Rate 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)

Incremental Commitments. (a) The Borrower may ~~at any time and~~ from time to ~~time request one or more Lenders (or one or more Eligible Transferees who will become Lenders)~~ time, by written notice to ~~provide an increase in Revolving Commitments~~ the Credit Facility Agent (a “~~Revolving~~ Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank,” as applicable (each, a “Working Capital Commitment Increase”), ~~one or more additional Tranches~~ up to an aggregate principal amount not to exceed the maximum amount of ~~Revolving Commitments~~ Working Capital Debt permitted pursuant to Section 6.2(a) (~~an “Additional/Replacement Revolving Commitment”~~Working Capital Debt) ~~or Incremental Term Loan Commitments~~ of the Common Terms Agreement. (~~such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving~~ b) The Working Capital Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 Notice shall specify (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 on which 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~~ Borrower proposes that 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Working Capital Commitment Increase shall be ~~identical~~ effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the ~~Initial Revolving Loans and~~ Credit Facility Agent (or, subject to clause (c)(iii)(E) below, such shorter period of time as agreed by 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 Incremental Lender/Issuing Banks (~~including, without limitation, the following: (A~~as defined below) 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 participating 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~~ Working Capital Commitment Increase), (Eii) ~~after giving effect to such Revolving Commitment Increases,~~ the ~~Pro Rata Percentage~~ amounts 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~~ Working Capital 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 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 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, (xiii) each Lender (including any proposed increase in Non-Fronting Limit or Fronting Limit of an Issuing Bank) and (iii) the identity of each Working Capital Lender, Issuing Bank or other Person that is an Eligible ~~Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to~~ Assignee or satisfies the ~~satisfaction of the relevant conditions~~ rating requirement set forth in ~~this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under~~ the ~~Tranche specified in such Incremental Amendment~~ definition of “Issuing Bank,” 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 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/Issuing Bank”) ~~shall execute and deliver~~ to whom the ~~Administrative Agent an Incremental Amendment (which shall not require the consent of~~ Borrower proposes any ~~other Lender), with the effectiveness~~ portion of the ~~Incremental~~ Working Capital Commitment ~~provided therein to occur on~~ Increase be allocated and the ~~date on which (w) a fully executed copy~~ amounts 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 limitationallocations; provided that, any ~~agreed upon upfront~~ Working Capital Lender, Issuing Bank or ~~arrangement fees owing~~ other Person approached to ~~the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y)~~ provide 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 or a portion of the ~~affected Lenders~~ Working Capital Commitment Increase may elect or decline, in its sole and ~~(ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender~~absolute discretion, to be in conformity with the 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 Lenderparticipate. (c) ~~Notwithstanding anything~~ Each Working Capital Commitment Increase shall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the ~~contrary contained above in this Section 2.15~~Borrower, the ~~Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to~~ Credit Facility Agent and each Incremental ~~Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that,~~ Lender/Issuing Bank (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: no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental ~~Term Loans~~ Lender/Issuing Bank, (ii) amendments required to ~~be made pursuant~~ reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to ~~such~~ this Agreement. The effectiveness of any 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 remain with respect be subject solely to the ~~Tranche to which~~ conditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (effectiveness before or after giving effect to such Working Capital Commitment Increase, (B) each Incremental Lender/Issuing Bank that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the ~~incurrence of such new Incremental Term Loans~~ legal opinions provided to the Credit Facility Agent pursuant to Section ~~2.01(b)~~4.1(f) ~~on a pro rata basis. To the extent the provisions~~ (Conditions to Initial Closing Date and Initial Advance – Opinions from Counsel) of the ~~preceding clause~~ Common Terms Agreement or Section 4.2(f) (~~iii~~Conditions to Upsize Closing Date – Opinions from Counsel) ~~require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans~~ of the Common Terms Agreement, as applicable, (C) since the time of the financial statements most recently provided pursuant to Section 10.1(a) (Accounting, Financial and Other Information) of the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche~~Common Terms Agreement no developments have occurred which, ~~it is acknowledged that~~ individually or in the ~~effect thereof may~~ aggregate have resulted in or could reasonably be expected to 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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.Material Adverse Effect,

Appears in 2 contracts

Sources: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)

Incremental Commitments. (a) The Borrowers (or the Borrower ~~may at any time and~~ Representative on behalf thereof) may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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~~ available at the ~~date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based~~ time such 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 Commitments are established from one or more Incremental Term ~~Loan Commitments being provided thereunder~~ Lenders and/or Incremental Revolving Facility Lenders (which ~~Tranche shall be a new Tranche (i.e., not the same as~~ may include any existing ~~Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c~~Lender) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ willing to ~~be incurred as a new Tranche of Incremental Term Loans,~~ provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall ~~have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is~~ be subject to the ~~requirements~~ approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ and, to the ~~consent of~~ extent the ~~Administrative Agent~~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 Incremental 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, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be ~~unreasonably withheld~~ (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or ~~delayed~~(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 ~~extent such consent, if any, would be required under Section 13.04(b) for an assignment of~~ Initial Revolving Loans ~~to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ (~~each, an~~ “~~Incremental Lender~~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 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”). (b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental ~~Amendment (which~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 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 final maturity date of any such Other Term Loans shall be no earlier than the Term B 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 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 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) ~~all fees required~~ substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 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 ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of ~~each Incremental Amendment, and~~ 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; (iviii) ~~Schedule 2.01~~ (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 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 (ix) 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Representative and (~~not~~ 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 ~~be unreasonably withheld~~the extent required by the Administrative Agent, ~~delayed or conditioned),~~ consistent with those delivered on the ~~parties~~ Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to ~~a given Incremental Amendment~~ the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (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 ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on~~ 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 ~~relative sizes~~ Initial Revolving Loans), when originally made, are included in each Borrowing of the ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrowers agree that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 amount of 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 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) ~~and~~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 ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ 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 ~~principal amount~~ same terms as an existing Class of ~~the applicable Term Loans effectively being extended, repriced~~ Revolving Facility Commitments or ~~refinanced,~~ (y) ~~fees and expenses (including~~ have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any ~~prepayment premium~~other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, ~~penalties or other call protection) related~~ such terms as shall be reasonably satisfactory to such ~~extension~~Issuing Bank or Swingline Lender, ~~repricing~~ (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or ~~refinancing,~~ 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 (zvi) ~~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 Extended Term ~~Loans.~~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. (a) ~~Borrower may at any time and~~ TheExcept during a Covenant Relief Period, the Borrowers may, by written notice to the Administrative Agent from time to time after the Restatement Effective Date, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility ~~Test~~Lender is a Lender, ~~any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless~~ (iii) in the ~~requirements~~ case of ~~Section 2.15(c~~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 may be part of such existing Class) ~~are satisfied~~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”), ~~which designation shall be set forth~~ and (iv) in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 Loan Commitments are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, with the Effective Yield applicable thereto to be ~~specified in the respective Incremental Amendment; provided, however, that, solely~~ commitments to make term loans with respect to any syndicated Incremental Term Loan denominated in Dollars, if the 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 (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 pricing (other than ~~those described in preceding clauses (I~~upfront fees or original issue discount) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the amortization terms ~~and provisions of any Revolving Commitment Increase shall be~~ identical to the ~~Initial Revolving~~ Term A Loans ~~and the Closing Date Revolving Commitments~~or, ~~and, for purposes of this Agreement and the other Credit Documents, all Revolving~~ Term A-1 Loans ~~made under the Revolving Commitment Increase shall be deemed to be Initial Revolving~~ or Term A-2 Loans (~~including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall~~ which may 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 part of the ~~Initial Revolving Loans~~applicable existing Class) or commitments to make term loans with pricing and amortization terms different from the Term A Loans or, ~~(D) the Revolving Commitment Increase shall require no scheduled amortization~~ Term A-1 Loans 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ A-2 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 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, (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 “Other 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~~ The Borrowers and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such 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 documentation as the Administrative Agent shall reasonably specify 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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, evidence the Incremental Term Loan ~~Commitments provided by an~~ Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with each existing Class of Loans, (ii) the final maturity date of any Other Incremental ~~Lenders~~Term Loans shall be no earlier than the 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 (x) the same terms 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~~applicable Class of then outstanding Term Loans; provided that, with the consent of the Borrowers, the Incremental Assumption Agreement with respect to 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 to maturity of any of the Term A Loans, Term A-1 Loans and Term A-2 Loans, (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 (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall be denominated in Dollars and borrowed by the Borrowers. 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 for 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 Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing, ~~delayed~~ no Incremental Term Loan Commitment or ~~conditioned)~~Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the ~~parties~~ 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 ~~given~~ 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 ~~Amendment~~ 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 ~~specify therein~~ 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 more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Company shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made ~~pursuant thereto~~ 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 Company's election, the date of determination of Pro Forma Compliance shall ~~constitute part of~~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 (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 effect the foregoing. (e) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be ~~added to~~applicable to clauses (e) through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers 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 ~~existing Tranche~~ 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 ~~case so long~~ 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 ~~following requirements are satisfied:~~ 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 ~~Incremental~~ Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans ~~to be made pursuant to such Incremental Amendment~~ shall have (x) the same ~~Borrower~~terms as the Term A Loans, Term A-1 Loans or Deferred 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) other than in the case of the Deferred Term A Loans, the ~~same Maturity Date and~~ weighted average life to maturity of any Extended Term Loans shall be no shorter than the ~~same Applicable Margins as~~ remaining weighted average life to maturity of the ~~Tranche~~ Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the ~~new~~ 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 ~~Loans are being added;~~ 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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~2.21), ~~such new Incremental~~ (i) the aggregate amount of Extended Term Loans ~~shall~~ and Extended Revolving Facility Commitments will not be ~~added to (and form part of) each Borrowing of outstanding Term Loans~~ included in the calculation of the ~~applicable Tranche on a pro rata basis~~ Incremental Amount, (~~based on the relative sizes of the various outstanding Borrowings)~~ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ any Extending Lender may extend all or any portion of its Term Loans ~~add such Incremental~~ 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 Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLoan and/or Extended Revolving Facility Commitment), ~~which irregular interest periods~~ (iv) there shall be ~~permitted notwithstanding anything~~ no condition to ~~the contrary in this Agreement. All determinations by~~ 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 ~~LIBO Rate, in such circumstances pursuant to~~ terms of 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 Extended Term Loan ~~may be established and incurred as a means of effectively extending the maturity of~~or Extended Revolving Facility Commitment implemented thereby, ~~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~~ (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of ~~any applicable Term Loans then outstanding so long as:~~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 ~~Lenders~~ 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 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 mechanical provisions relating 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 (Norwegian Cruise Line Holdings Ltd.)

Incremental Commitments. (a) ~~Borrower may at any time and~~ The Borrowers may, by written notice to the Administrative Agent from time to time after the Restatement Effective Date, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility ~~Test~~Lender is a Lender, ~~any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans), unless the requirements of Section 2.15(c)~~ and/or Incremental Revolving Facility Commitments are ~~satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ requested to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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% become effective (the “~~MFN Pricing Test~~Increased Amount Date”~~); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I~~) and (~~II)~~iii) ~~that may differ from those~~ in the case of ~~other Tranches of Term Loans~~Incremental Revolving Facility Commitments, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing whether such Incremental ~~Term Loans than the provisions applicable~~ Revolving Facility Commitments are to ~~the existing Term Loans or as are otherwise reasonably satisfactory~~ be commitments to ~~the Administrative Agent, (ix) the~~ make revolving loans with pricing and amortization terms ~~and provisions of any Revolving Commitment Increase shall be~~ identical to ~~the Initial~~ an existing Class of 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 Facility Loans (~~including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall~~ which may 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 part of such ~~Revolving Commitment Increase), (E~~existing Class) ~~after giving effect~~ or commitments 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 make revolving loans 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~~ pricing and/or amortization terms different from all existing Classes 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 satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Facility 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 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, (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 “Other 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~~ The Borrowers and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided that, (i) any Incremental Term Loans shall rank pari passu or junior in right of payment and of security with each existing Class of Loans, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than 91 days after the Revolving Facility Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have ~~been delivered~~ (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) ~~all fees required~~ the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ Agent, (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than the ~~extent it served as the arranger for~~ remaining weighted average life to maturity of any other Class of Revolving Facility Loans and (vii) the Incremental ~~Commitments), (y) all~~ Term Loans and Other Incremental ~~Commitment Requirements are satisfied,~~ Revolving Loans shall be denominated in Dollars and ~~(z) all other conditions set forth in this Section 2.15 shall have been satisfied~~borrowed by the Borrowers. ~~The Administrative Agent shall promptly notify each Lender as to~~ Each of the ~~effectiveness of each Incremental Amendment, and at such time~~parties hereto hereby agrees that, (i) ~~Schedule 2.01~~ 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother 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 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 Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Revolving Facility Loans and (iii) the Company 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 Company'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 Borrowers agree 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 ~~contained above~~ in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section ~~2.15~~2.21), pursuant to one or more offers made from time to time by the Borrowers 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 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 ▇▇▇▇▇▇’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 ~~Commitments provided by~~ 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 or (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 ~~Lenders,~~ Assumption Agreement and such other documentation as the ~~case may be~~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, ~~pursuant~~ fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to ~~each Incremental Amendment~~ 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 ~~constitute a new Tranche~~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 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 ~~separate~~ determined by the Borrowers and ~~distinct from~~ set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as the existing ~~Tranches pursuant~~ 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;~~ 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 ~~that, with the consent of~~ 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, ~~delayed~~ 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 ~~conditioned)~~upon or prior to the maturity date for any Class of Revolving Facility Commitment. (g) Upon the effectiveness of any such Extension, the ~~parties to a given Incremental Amendment may specify therein that~~ 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 ~~Incremental Term Loans made pursuant thereto shall constitute part of~~other Loan Documents, ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (i) ~~the~~ if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term ~~Loans to be made pursuant to~~ Loan having the terms of such ~~Incremental Amendment shall have the same Borrower, the same Maturity Date~~ Extended Term Loan and ~~the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;~~ (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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~2.21), ~~such new Incremental~~ (i) the aggregate amount of Extended Term Loans ~~shall~~ and Extended Revolving Facility Commitments will not be ~~added to (and form part of) each Borrowing of outstanding Term Loans~~ included in the calculation of the ~~applicable Tranche on a pro rata basis~~ Incremental Amount, (~~based on the relative sizes of the various outstanding Borrowings)~~ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ any Extending Lender may extend all or any portion of its Term Loans ~~add such Incremental~~ 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 ~~Loans~~ 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 ~~then outstanding Borrowings of LIBO Rate Loans~~ Administrative Agent of such ~~Tranche~~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 ~~is acknowledged~~ 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 ~~effect thereof may result in~~ 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 ~~new Incremental Term Loans having irregular Interest Periods~~ Extension, including, without limitation, timing, rounding and other adjustments. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding j) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (j) through (o) of this ~~Agreement. All determinations~~ Section 2.21), the Borrowers may by ~~any~~ written notice to the Administrative Agent establish one or more tranches of ~~the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ term loans (dincluding one or more “term loan B” tranches) ~~Subject to compliance with the other applicable requirements set forth in~~ under 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 Agreement (“Refinancing Term Loans”), the Net Proceeds of which are used to refinance and/or replace all or any ~~applicable~~ 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 then outstanding~~ Loans), so long ~~as:~~ 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 aggregate amount of ~~any Incremental~~ such Refinancing Term Loans does not exceed the ~~sum of (x) the principal~~ aggregate amount of Revolving Facility Commitments terminated at the ~~applicable Term Loans effectively being extended, repriced or refinanced~~time of incurrence thereof plus amounts used to pay fees and expenses, (yii) 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 if the Revolving Facility Credit Exposure outstanding on the Refinancing Effective Date would exceed the aggregate amount of Revolving Facility Commitments outstanding in each case after giving effect to the ~~establishment and incurrence~~ termination of such ~~Incremental Term Loans.~~Revolving Facility Commitments, the Borrowers 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 Date after giving effect to the termina

Appears in 1 contract

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Incremental Commitments. (ai) ~~Borrower may at any time~~ As of the Amendment No. 1 Effective Date: (A) each Lender shall hold commitments in respect of the Revolving Loan Facility as set forth on Part B of Schedule 1.1A hereto and ~~from time~~ each Issuing Bank’s LC Commitment shall be as set forth on Part C of Schedule 1.1A hereto, in each case, on the terms and subject to ~~time request one or more Lenders~~ the conditions set forth below and in the Amended Credit Agreement; (~~or one or more Eligible Transferees who will become~~ B) each of the Lenders) , immediately prior to ~~provide an increase in Revolving Commitments~~ giving effect to this Amendment (a the “~~Revolving Commitment Increase~~Existing Lenders”), ~~one or more additional Tranches~~ shall be deemed to have assigned to each of ~~Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ the Incremental ~~Term Loan Commitments (~~Lenders, and each of the Incremental Lenders shall be deemed to have assumed from each of the Existing Lenders, at the principal amount thereof, such ~~Term~~ interests in the Loans ~~incurred in connection therewith~~outstanding on the Amendment No. 1 Effective Date such that, ~~each, an “~~after giving effect to each such deemed assignment and assumption of participations and to the Incremental ~~Term Loan” and, collectively~~Lenders becoming Lenders, the percentage of the aggregate outstanding Loans held by each Lender will equal such ▇▇▇▇▇▇’s Pro Rata Share of the Commitments; (C) each Incremental Commitment shall be deemed, for all purposes, a “Commitment” under the Amended Credit Agreement and each Incremental ~~Term Loans” and~~Loan shall be deemed, ~~collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment~~for all purposes, ~~each, an~~ a “Loan”; (D) after giving effect to the Incremental ~~Facility” and collectively~~Commitments, the “LC Commitments of each Lender shall be reallocated such that the percentage LC Commitments of each Lender will equal such Lender’s Pro Rata Share of the Commitments; (E) each Incremental ~~Facilities”)~~ Lender agrees to ~~Borrower and,~~ make the Incremental Commitments available under and subject to the terms and conditions ~~contained in this~~ of the Amended Credit Agreement as an increase to, and in on identical terms as the ~~relevant~~ Commitments (as amended hereby) and shall become an “Issuing Bank”, “Secured Party” and a “Lender” under the Amended Credit Agreement with respect to the Incremental ~~Amendment, provide commitments and/or make Loans pursuant~~ Commitments and all matters relating thereto; ~~it being understood~~ and (F) in accordance with Section 2.11 of the Amended Credit Agreement, each of the Existing Lenders will automatically and ~~agreed~~without further act be deemed to have assigned to each Incremental Lender, ~~however~~and each such Incremental Lender will automatically and without further act be deemed to have assumed, ~~that (i) no~~ a portion of such Existing Lender’s participations in outstanding Letters of Credit, such that, after giving effect to each such deemed assignment and assumption of participations and to the Incremental Lenders becoming Lenders, the percentage of the aggregate outstanding participations in Letters of Credit by each Lender ~~shall be obligated to provide an Incremental Facility as a result~~ will equal such ▇▇▇▇▇▇’s Pro Rata Share of ~~any such request by Borrower,~~ the Commitments. (ii) ~~any Lender~~ Each Incremental Lender: (~~including any Eligible Transferee who will become~~ A) confirms that it received a ~~Lender) may so~~ copy of this Amendment, the Existing Credit Agreement and such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and to provide an its Incremental ~~Facility without~~ Commitment hereunder and make 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 Loans with respect thereto on the ~~date~~ basis 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)~~ which it has made such analysis and decision independently and without reliance 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,~~ Agent or any ~~Tranche of the Incremental Term Loan Commitments being provided thereunder~~ Lender; (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cB) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which confirms that it 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely sophisticated with respect to ~~any syndicated Incremental Term Loan denominated~~ decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in Dollars, if the 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 making loans of such ~~date~~ type; (~~in accordance with~~ C) appoints, authorizes and instructs the ~~requirements of~~ Administrative Agent to take such action as agent on its behalf and to exercise such powers under the ~~definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans~~ Amended Credit Agreement 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 (~~Loan Documents or any 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 to the application of optional~~ instrument or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans document furnished pursuant hereto or thereto as are ~~otherwise reasonably satisfactory~~ delegated to the Administrative Agent, ~~(ix)~~ by the terms thereof, together with such powers as are reasonably incidental thereto; and (D) acknowledges and ~~provisions of any Revolving Commitment Increase~~ agrees that it shall be ~~identical to~~ an “Issuing Bank”, “Secured Party” and “Lender” under, and for all purposes of, the ~~Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this~~ Amended Credit Agreement and the other ~~Credit~~ Loan Documents, be subject to and bound by the term thereof and perform 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~~ obligations 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~~ all the rights 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 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 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, (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. (biii) ~~At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the~~ 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)~~ hereby consents to the ~~extent 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 Lenders’ providing 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 (FTAI Aviation Ltd.)

Incremental Commitments. ~~(a)~~ The Borrower may at any time ~~and~~ or from time to ~~time~~ time, by notice to the Administrative Agent (an “Incremental Loan Request”), request (A) one or more ~~Lenders~~ new commitments of Term Loans which may be of the same Class as any outstanding Term Loans (an “Incremental Term Loan Increase”) or a new class of term loans (collectively with any Incremental Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more ~~Eligible Transferees who will become Lenders) to provide an increase~~ increases in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”), ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ and collectively with any Incremental Term ~~Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~Commitments, the “Incremental ~~Term Loans” and~~Commitments”), ~~collectively with~~ whereupon the Administrative Agent shall promptly deliver a copy to each of the Appropriate Lenders. No Lender shall have any ~~Revolving Commitment Increase~~ obligation, express or implied, to provide Incremental Commitments, and any ~~Additional/Replacement Revolving Commitment~~decision by a Lender to provide Incremental Commitments shall be made in its sole discretion independently from any other Lender. The Borrower agrees that it will not incur any Incremental Commitments without first providing to the existing Lenders the opportunity to provide such Incremental Commitments on substantially the same terms and conditions (including with respect to pricing terms) prior to offering the opportunity to provide such Incremental Commitments to any other Person on such terms and conditions; provided that the existing Lenders (or any of them) must elect to accept such opportunity to provide such proposed Incremental Commitments within five (5) Business Days of receipt of such offer or else be deemed to have declined the opportunity to provide such Incremental Commitments and the Borrower shall then have the right to have another Lender or an Additional Lender other than the existing Lenders provide such Incremental Commitments (subject only to any such Additional Lender being an Eligible Assignee). Lenders may elect or decline, ~~each~~in their sole discretion, ~~an “~~to participate in the provision of any such Incremental ~~Facility”~~ Commitments. Only the consent of each applicable Lender shall be required for it to provide Incremental Commitments and ~~collectively,~~ Incremental Loans pursuant to this Section 2.18. The Borrower may accept some or all of the ~~“Incremental Facilities”) to Borrower and~~offered amounts or, subject to the ~~terms and conditions contained~~ right of first refusal set forth above, designate new lenders (provided, in ~~this Agreement and in the relevant Incremental Amendment~~any event, ~~provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide~~ such new lender is 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 CommitmentAssignee), 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (Additional Lenders hereunder 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~2.18, ~~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~~ which Additional Lenders may provide all or delayed) to the extent 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~~ portion 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 Commitments and/or 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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

Incremental Commitments. ~~(a) Borrower~~ The Applicant Party may at any ~~time~~ time, and from time to ~~time~~ time, by notice to the Administrative Agent, request ~~one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ an increase in ~~Revolving~~ the Aggregate Commitments provided for under this Agreement by an amount (a in the aggregate for all such requests) not exceeding $500,000,000 (each such increase, an “~~Revolving~~ Incremental Commitment Increase”); provided, ~~one or more additional Tranches~~ that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of ~~Revolving Commitments~~ $1,700,000,000, (~~an “Additional/Replacement Revolving Commitment”~~ii) or any such Incremental ~~Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving~~ Commitment Increase shall be in an amount of $25,000,000 or any whole multiple of $10,000,000 in excess thereof and ~~any Additional/Replacement Revolving Commitment~~(iii) each Incremental Commitment Increase will be treated as a Commitment under this Agreement; provided, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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, howeverfurther, that (i) no Lender shall be ~~obligated~~ required to provide an all or any portion of such Incremental ~~Facility as a result of any such request by Borrower,~~ Commitment Increase and (ii) ~~any Lender~~ no Default or Event of Default shall have occurred and be continuing or would result from incurring the Incremental Commitment Increase on the Incremental Commitment Increase Effective Date (~~including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without~~ as such term is defined below). To achieve the ~~consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the~~ full amount of ~~any~~ a requested increase, the Applicant Party may also invite additional banks or other financial institutions to become Incremental ~~Facility made available~~ Increase Lenders pursuant to a ~~given Incremental Amendment shall be~~ joinder agreement 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 form and substance satisfactory to the ~~satisfaction of the applicable Incurrence-Based~~ Administrative Agent (each such joinder agreement, an “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 Joinder Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans”), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each ~~new Tranche of~~ Incremental ~~Term Loans~~ Increase Lender 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ approval 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~~ Issuing Lender (~~with the consent of the Administrative Agent,~~ such approval in each ~~Issuing Bank and the Swingline Lender (~~case not to be unreasonably withheld or delayed) to and the ~~extent such consent~~approval of the Applicant Party, 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 but not the ~~Administrative Agent an Incremental Amendment (which shall not require the consent~~ approval of any other Lender). If the Aggregate Commitments are increased in accordance with this Section, 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 and the ~~extent it served as~~ Applicant Party shall determine the ~~arranger for~~ effective date (the “Incremental ~~Commitments), (y~~Increase Effective Date”) ~~all Incremental Commitment Requirements are satisfied,~~ and ~~(z) all other conditions set forth in this Section 2.15 shall have been satisfied~~the final allocation of such increase. The Administrative Agent shall promptly notify ~~each Lender as to~~ the ~~effectiveness~~ Applicant Party and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date. On each Incremental ~~Amendment~~Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and ~~at such time, (i) Schedule 2.01 shall~~ without further action be deemed ~~modified~~ to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 have assigned to each Incremental ~~Amendment shall constitute~~ Increase Lender providing a ~~new Tranche~~portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, ~~which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided~~ a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, ~~with the consent~~ after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Pro Rata Share 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 participations hereunder in Letters 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding Credit. Notwithstanding anything to the contrary set forth ~~in Section 2.09~~herein, ~~such new~~ the terms of each Incremental ~~Term Loans~~ Commitment Increase shall be ~~added~~ identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the Company and the applicable Incremental Increase Lenders. As a condition precedent to such increase, the Applicant Party shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the Applicant Party (i) certifying that such Incremental Commitment Increase and the performance of the Applicant Party’s obligations thereunder (in form and substance reasonably satisfactory to the Administrative Agent) have been duly authorized (and ~~form part of~~attaching any evidence thereof reasonably requested by the Administrative Agent), and (ii) ~~each Borrowing of outstanding Term Loans~~ certifying that, as of the ~~applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings)~~Incremental Commitment Increase Effective Date, ~~so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (~~before and after giving effect to such Incremental Commitment Increase, (A) the ~~incurrence of~~ representations and warranties contained in Article IV and the other Credit Documents are true (except that for such ~~new Incremental Term Loans~~ purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section ~~2.01(b~~5.01(a)), (B) ~~on a pro rata basis~~no default or event of default under any engineering, procurement, construction or maintenance contract of the Applicant Party or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Applicant Party to perform its obligations under the Credit Documents and (C) no Default shall have occurred and be continuing. To This Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the ~~extent~~ contrary. In connection with any Incremental Commitment Increase, the Administrative Agent and the Company may, without the consent of any Lenders, effect such amendments to any Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 Loans2.24.

Appears in 1 contract

Sources: Revolving Performance Letter of Credit Facility Agreement (Fluor Corp)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth herein) to provide an increase in Revolving Loan Commitments (a “Revolving Commitment Increase”~~), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”~~) or and/or Incremental Term Loan Commitments (such ~~Term Loans~~ term loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans~~” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities~~”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental ~~Amendment~~Agreement, ~~provide commitments and/or~~ make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide a Revolving Commitment Increase or an Incremental ~~Facility~~ Term Loan Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide a Revolving Commitment Increase or an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide a Revolving Commitment Increase or an Incremental ~~Facility~~ Term Loan Commitment without the consent of any other ~~Lender~~Lender (provided that the Administrative Agent, Swingline Lender and Issuing Lenders shall have consented (not to be unreasonably withheld or delayed) to any such Person providing a Revolving Commitment Increase if such consent would be required for an assignment of Revolving Loans to such Person under Section 13.04), (iii) each Revolving Commitment Increase and Tranche of Incremental ~~Facility~~ Term Loan Commitments shall be denominated in ~~Dollars or an Alternative Currency~~U.S. Dollars, (iv) the amount of any Revolving Commitment Increase and Incremental ~~Facility~~ Term Loan Commitment made available pursuant to a given Incremental ~~Amendment~~ Agreement shall be in a minimum aggregate amount for all Lenders which provide ~~such~~ a Revolving Commitment Increase or Incremental ~~Facility~~ Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $~~10,000,000~~15,000,000, (v) the aggregate ~~principal~~ amount of ~~any~~ all Revolving Commitment Increases and Incremental Term Loan ~~or Commitment, as applicable,~~ Commitments provided pursuant to ~~an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken~~ this Section 2.15 (together with ~~any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt~~ amounts incurred pursuant to Section ~~10.04(xxvii)(1) on such date~~10.04(xvi)), ~~(x)~~ in each case after the ~~then-remaining Fixed~~ Closing Date, shall not exceed the 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, Amount; (vi) the proceeds of all Revolving Commitment Increases and Incremental ~~Facilities~~ Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) ~~Borrower~~ each Incremental Agreement shall specifically designate, ~~in consultation~~ with the approval of the Administrative Agent, ~~any~~ the Tranche of the Incremental ~~Term Loan~~ Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental ~~Term Loan~~ Commitments or other ~~Term~~ Loans), ~~unless~~ unless, in the case of Incremental Term Loans or Incremental Term Loan Commitments, the requirements of Section 2.15(c) are satisfied~~), which designation shall be set forth in the applicable Incremental Amendment~~, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental ~~Amendment~~Agreement, 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the Initial Term Loans and the other Tranches of Incremental Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of ~~any such~~ certain prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long ~~as,~~ as such Tranche of Incremental Term Loans shall have (a) a an Initial Incremental Term Loan Maturity Date of no earlier than the ~~Term Loans~~ then Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, with the Effective Yield applicable thereto to be specified in the respective Incremental ~~Amendment~~Agreement; provided, however, ~~that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars,~~ that if the Effective Yield for ~~any~~ such Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, any such Initial Term Loans shall become subject to a determination of a new Applicable Increased Term Loan Spread and the Applicable Margins for ~~such~~ all then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”,” (III) ~~so that the difference between the Effective Yield~~ Incremental Term Loans may share on a pro rata basis or a less than pro rata basis (but not greater than pro rata basis) in any mandatory prepayments of Term Loans (other than pursuant to a refinancing of such Term Loans or with respect to ~~such new Incremental~~ greater than pro rata payments to an earlier maturing Tranche of Term ~~Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”);~~ Loans) and (~~III~~IV) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (IIIII)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term ~~Loans, in each case, taken~~ Loans and such other differences as ~~a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise~~ may be 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,~~ Loan 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[reserved], (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 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 the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each 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,~~ (~~xiii~~xii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental ~~Amendment~~ Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make ~~Incremental~~ Revolving ~~Loans~~ Commitment Increases 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~~ the applicable Incremental ~~Amendment (with respect to Incremental Revolving Loans)~~ Agreement and such Term 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~~Documents. (b) At the time of the provision of Incremental Commitments pursuant to this Section ~~2.15~~2.14, the 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 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 joinder agreement (each such agreement, an “Incremental ~~Amendment (which shall not require the consent of any other Lender~~Agreement”), 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~~ Agreement 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~~Agent), (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~~Agreement, 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 the extent requested by any Incremental Lender, ~~Term~~ Notes ~~or Revolving Notes, as applicable,~~ will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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~~2.14, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental ~~Amendment~~ Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this ~~Agreement;~~ Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.)), provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental ~~Amendment~~ Agreement 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~~ Agreement 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~~ dates as then remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term ~~Loans pursuant to Section 2.01(b)~~Loans) 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 Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having ~~irregular~~ short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then outstanding Borrowings of Term Loans of such Tranche which ~~irregular interest periods~~ are maintained as LIBO Rate Loans, the Lenders that have made such Incremental Term Loans shall be ~~permitted notwithstanding anything~~ entitled to receive from the ~~contrary in this Agreement~~Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any ~~the Administrative Agent of the LIBO Rate, in such circumstances~~ Lender 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

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~incurrence), (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying 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~~ all then outstanding Initial Term Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Initial Term Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (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 (~~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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO ~~Rate,~~ Rate 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 (Iridium Communications Inc.)

Incremental Commitments. (a) ~~Borrower may at any time~~ Each Incremental Lender on, and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the ~~terms and conditions contained in this Agreement and in~~ occurrence of, the ~~relevant Incremental Amendment, provide commitments and/or~~ First Amendment Effective Date hereby severally agrees to 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 Borrower 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~~ single Borrowing in an aggregate principal amount ~~of any Loan or Commitment,~~ not to exceed such Incremental Lender’s Incremental Commitments 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments opposite its name 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 satisfiedAnnex I attached hereto. (b) At The Incremental Lenders, the ~~time~~ Lenders, the Facility Agent, the Security Trustee, the Borrower and the Guarantors agree that this First Amendment effects the provisions of Section 2.21 of the ~~provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (~~Credit Agreement with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense respect to such Incremental ~~Lender,~~ Commitments and shall constitute a Joinder Agreement pursuant to be and in ~~conformity~~ accordance with Section 2.21 of the ~~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~~Credit Agreement. (c) ~~Notwithstanding anything to~~ Upon the ~~contrary contained above in this Section 2.15, the Incremental Term~~ incurrence of a 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~~First Amendment, ~~with the consent of the Administrative Agent (not to~~ such Loan shall 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 remain with respect subject to the ~~Tranche to which such new Incremental Term Loans are being added~~ interest rates (~~with~~ including the ~~amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis~~Margin) ~~as is theretofore~~ and terms, repayment, voluntary prepayment terms and mandatory prepayment terms 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary as set forth in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of~~ the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 Credit Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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~~ On (and subject to ~~compliance with~~ the occurrence of) the First Amendment Effective Date, each Incremental Lender party hereto to the extent provided in this First Amendment and the Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable ~~requirements set forth in this Section 2.15, any new Incremental Term~~ Loan ~~may be established~~ Documents. (e) The Borrower 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: each Guarantor acknowledges and agrees that (i) the ~~Lenders~~ Borrower shall be liable for all Obligations with respect to all Loans made to the ~~relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity~~ Borrower pursuant to ~~participate in such transaction on a pro rata basis (~~this First Amendment and ~~on the same terms) and~~ (ii) all such Obligations (including all such Loans pursuant to this First Amendment) shall constitute Guaranteed Obligations and shall be entitled to the ~~amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount~~ benefits of the ~~applicable Term~~ Security Documents and the Guarantees. (f) The Incremental Commitment of each Incremental Lender shall automatically terminate upon the making of the Loans ~~effectively being extended~~pursuant to this First Amendment on the First Amendment Effective Date. (g) The proceeds of the Loans pursuant to this First Amendment shall be used by the Borrower solely for the purposes set forth in the second recital of this First Amendment and any amounts repaid, ~~repriced~~ prepaid 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 Loanscancelled may not be reborrowed.

Appears in 1 contract

Sources: Credit Agreement (Eagle Bulk Shipping Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility ~~Test~~Lender is a Lender, ~~any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless~~ (iii) in the ~~requirements~~ case of ~~Section 2.15(c~~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 may be part of such existing Class) ~~are satisfied~~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”), ~~which designation shall be set forth~~ and (iv) in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term ~~Loans shall have the same~~ Loan Commitments are to be commitments to make term loans with pricing and amortization terms ~~as each other Tranche of Term Loans as in effect immediately prior~~ identical to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches an existing Class of Term Loans (~~unless the holders~~ which may be part of ~~the Incremental~~ such existing Class) or commitments to make term loans with pricing and amortization terms different from all existing Classes of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with any existing Class of Term A Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization, call premiums, call protection and final maturity date, shall have ~~been delivered~~ (x) the same terms as an existing Class 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 to maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, (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) ~~all fees required~~ the same terms as the Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 denominated in U.S. dollars and borrowed by the Borrower; provided, further that the All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan incurred prior to the ~~extent~~ date that is twelve (12) months after the Closing Date shall be the same as that applicable to the 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, respectively, by no more than [*]% (it ~~served~~ 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 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 ~~arranger~~ 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 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 timeparties hereto hereby agrees that, (i) ~~Schedule 2.01~~ 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 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 ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother 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 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 more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving 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. (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 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 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 ~~contained above~~ in Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section ~~2.15~~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 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 Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan ~~Commitments provided by~~ 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 or (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 ~~Lenders,~~ Assumption Agreement and such other documentation as the ~~case may be~~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, ~~pursuant~~ fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to ~~each Incremental Amendment~~ 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 ~~constitute a new Tranche~~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 ~~separate~~ determined by the Borrower and ~~distinct from~~ set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as the existing ~~Tranches pursuant~~ 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;~~ 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 ~~that, with the consent of~~ 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, ~~delayed~~ 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 ~~conditioned)~~upon or prior to the maturity date for any Class of Revolving Facility Commitment. (g) Upon the effectiveness of any such Extension, the ~~parties to a given Incremental Amendment may specify therein that~~ 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 ~~Incremental Term Loans made pursuant thereto shall constitute part of~~other Loan Documents, ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (i) ~~the~~ if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term ~~Loans to be made pursuant to~~ Loan having the terms of such ~~Incremental Amendment shall have the same Borrower, the same Maturity Date~~ Extended Term Loan and ~~the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;~~ (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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~2.21), ~~such new Incremental~~ (i) the aggregate amount of Extended Term Loans ~~shall~~ and Extended Revolving Facility Commitments will not be ~~added to (and form part of) each Borrowing of outstanding Term Loans~~ included in the calculation of the ~~applicable Tranche on a pro rata basis~~ Incremental Amount, (~~based on the relative sizes of the various outstanding Borrowings)~~ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ any Extending Lender may extend all or any portion of its Term Loans ~~add such Incremental~~ 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 Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLoan and/or Extended Revolving Facility Commitment), ~~which irregular interest periods~~ (iv) there shall be ~~permitted notwithstanding anything~~ no condition to ~~the contrary in this Agreement. All determinations by~~ 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 ~~LIBO Rate, in such circumstances pursuant to~~ terms of 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 Extended Term Loan ~~may be established and incurred as a means of effectively extending the maturity of~~or Extended Revolving Facility Commitment implemented thereby, ~~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~~ (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of ~~any applicable Term~~ 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 or Swingline Lender shall be obligated to provide Swingline Loans ~~then outstanding so long as:~~or 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 ~~Lenders~~ associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with ~~respect~~ the Administrative Agent prior 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.making

Appears in 1 contract

Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower ~~may~~ shall have the right, in consultation and coordination with, Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time ~~request~~ after the Initial Borrowing Date and prior to the date which is three months prior to the Revolving Loan Maturity Date, that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become ~~Lenders~~Lenders as provided below) to provide ~~an increase in Revolving Commitments (a “Revolving Commitment Increase”)~~Incremental Commitments, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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~~ Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental ~~Facility~~ Commitment without the consent of any other Lender, (iii) each provision of Incremental ~~Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available~~ Commitments on a given date pursuant to ~~a given Incremental Amendment~~ this Section 2.14 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (xiii) each Lender (including any Eligible Transferee who will become a ~~Lender~~lender)) ~~agreeing~~ of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided pursuant to ~~provide an~~ this Section 2.14 shall not exceed the Maximum 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 satisfiedAmount. (b) At the time of the provision of Incremental Commitments pursuant to this Section ~~2.15~~2.14, the 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 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)~~Commitment Agreement, with the effectiveness of ~~the~~ such Incremental Lender's Incremental Commitment ~~provided therein~~ to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than 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~~ up-front or arrangement fees owing to ~~the~~ Administrative Agent ~~to the extent it served as the arranger for the Incremental Commitments~~(or any affiliate thereof)), (yx) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in ~~this Section 2.15~~ such Incremental Commitment Agreement shall have been satisfied. ~~The~~ Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment~~Commitment Agreement, and at such time, (i) ~~Schedule 2.01~~ the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Appendix A shall be deemed modified to reflect the revised ~~Incremental~~ Revolving Loan Commitments of the affected Lenders and (iiiii) to the extent requested by any Incremental Lender, ~~Term~~ Revolving Loan Notes ~~or Revolving Notes, as applicable,~~ will be ~~issued~~ issued, at the expense of the Borrower~~’s expense~~ , to such Incremental ~~Lender, to be~~ Lender in conformity with the 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~~2.05. (c) ~~Notwithstanding anything to~~ At the ~~contrary contained above in this Section 2.15, the~~ time of any provision of 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~~Section 2.14, the Borrower shall, in coordination with ~~the consent~~ Administrative Agent, repay outstanding Revolving Loans of certain of the ~~Administrative Agent~~ Lenders, and incur additional Revolving Loans from certain other Lenders (~~not to be unreasonably withheld, delayed or conditioned~~including the Incremental Lenders), ~~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~~ each 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 remain 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 extent necessary so that all of the respective Tranche proportionately); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates Lenders participate in each outstanding ~~Borrowing~~ borrowing of ~~Term~~ Revolving Loans pro rata on the basis of ~~the~~ their respective ~~Tranche~~ Revolving Loan Commitments (after giving effect to any increase in the ~~incurrence of such new Incremental Term Loans~~ Total Commitment pursuant to this Section ~~2.01(b)~~2.14) ~~on a pro rata basis. To~~ and with the ~~extent~~ Borrower being obligated to pay to the ~~provisions~~ respective Lenders any costs of the ~~preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add~~ type referred to in Section 2.10 in connection with any such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretorepayment and/or incurrence. (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 (Dole Food Company Inc)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans,~~ incurrence); (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Term B-3-4 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding ~~Initial~~ Term B-3-4 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-3-4 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the ~~Initial~~ 2023 Revolving Loans and the ~~Closing Date~~ 2023 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~~ 2023 Revolving ~~Loans (~~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~~ 2023 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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ Rate applicable to the ~~Initial~~ 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the ~~Initial~~ 2023 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the ~~Initial~~ 2023 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section ~~2.09~~2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate~~ 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 Rate~~ 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 ~~any~~ the Administrative Agent of the ~~LIBO Rate,~~ Adjusted 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 (Iridium Communications Inc.)

Incremental Commitments. (a) After the Closing Date has occurred, any Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans ~~incurred~~ are funded or Incremental Revolving Facility Commitments are established (except as set forth in ~~connection therewith, each, an “~~clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term ~~Loan” and~~Lenders and/or Incremental Revolving Facility Lenders (which, ~~collectively~~in each case, ~~the “Incremental Term Loans” and, collectively with~~ may include any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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; existing Lender (it being understood ~~and agreed, however,~~ that ~~(i)~~ no Lender shall be obligated to provide an any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but shall be required to be persons which would qualify as assignees of a ~~result of any~~ Lender in accordance with Section 9.04) willing to provide such ~~request by Borrower~~Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~(ii) any Lender (including any Eligible Transferee who will become a Lender)~~ as the case may ~~so provide an Incremental Facility without the consent of any other Lender~~be, ~~(iii)~~ in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be ~~denominated in Dollars~~ 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 (which approvals shall not be unreasonably withheld, conditioned or ~~an Alternative Currency,~~ delayed). Such notice shall set forth (ivi) 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 and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a ~~new Tranche~~ minimum amount of the Dollar Equivalent of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become 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 shall together with any then outstanding Initial Euro Term Loans or ~~other~~ Tranche B-12 Dollar Term Loans, as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-12 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 Term B Loans (“Other Incremental Term Loans”)~~, unless~~ . (b) The applicable Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the ~~requirements~~ Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of ~~Section 2.15(c) are satisfied), which designation~~ such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall ~~be set forth in~~ specify the terms of the applicable Incremental ~~Amendment,~~ Term Loans and/or Incremental Revolving Facility Commitments; provided that: (~~viii~~i) if any (x) commitments to ~~be incurred as a new Tranche of Incremental~~ make additional Term ~~Loans, such Incremental Term~~ B Loans shall have the same terms as ~~each other Tranche of~~ the applicable Term ~~Loans as in effect immediately prior to the effectiveness~~ B Loans, and shall form part of the ~~relevant Incremental Amendment, except as to purpose (which is subject to the requirements~~ same Class of the ~~preceding clause~~ applicable Term B Loans and (~~vi)~~y) ~~and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of~~ 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 Revolving Facility Commitments shall have ~~(a) a Maturity Date of no earlier than~~ the ~~Term Loans Latest Maturity Date~~ same terms as of the ~~date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of~~ then outstanding ~~Term Loans~~ 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 ~~longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest~~ latest Revolving Facility Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ 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 subject to clause (v) below), (iii) (x) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the 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 ~~effect~~ 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 ~~the effective date of the Revolving Commitment Increase (immediately~~ or prior to the ~~establishment~~ latest Revolving Facility Maturity Date and (z) 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 ~~Revolving Commitment Increase~~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 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), (EII) 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 (iv))), (v) 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 ~~Revolving Commitment Increases~~increase, the ~~Pro Rata Percentage~~ Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the ~~Revolving Commitments~~ 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 ~~each Lender may be adjusted to give effect~~ the Term Yield Differential to the ~~total Revolving Commitment as increased by~~ extent 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 floor is greater than the ~~then latest maturing Tranche~~ Eurocurrency Rate in effect for an Interest Period of ~~outstanding Revolving Loans~~three months’ duration at such time, ~~(xi) any Tranche of~~ and, with respect to such excess, 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 “floor” applicable to the ~~existing Revolving~~ 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) than the Term B Loans in any mandatory prepayment hereunder, (vii) there shall be no borrower (other than a Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or ~~as are otherwise reasonably satisfactory to the Administrative Agent,~~ Incremental Revolving Facility Commitments, (~~xii~~viii) ~~all~~ Other 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 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 Facility Commitments shall not be secured by any ~~assets that do not constitute Collateral for~~ asset of Parent or its Subsidiaries other than the ~~outstanding Loans or~~ Collateral; and (ix) the Parent shall be ~~guaranteed by~~ in Pro Forma Compliance with the Financial Covenants (if then applicable). Each party hereto hereby agrees that, upon the effectiveness of any ~~guarantors that are not Credit Parties~~Incremental Assumption Agreement, ~~(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~~ this Agreement shall be amended to the ~~satisfaction~~ extent (but only to the extent) necessary to reflect the existence and terms of the ~~relevant conditions set forth in this Agreement, make~~ Incremental Term Loan Commitments and/or Incremental Revolving ~~Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment~~ Facility Commitments evidenced thereby as provided for in Section ~~2.01(c) (with respect~~ 9.08(e). Any amendment to ~~Incremental Term Loans)~~ this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and ~~applicable Incremental Amendment (with respect to Incremental Revolving Loans)~~ any such collateral and ~~such Loans~~ other documentation shall ~~thereafter~~ be deemed to “Loan Documents” hereunder and may 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, memorialized in writing by the Administrative Agent ~~and each such Lender (~~with the Parent’s consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender~~ (not to be unreasonably ~~withheld~~ withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or ~~delayed~~Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall 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 ~~consent~~tranche of Incremental Term Loans agree, ~~if any, would be required under Section 13.04(b~~the foregoing clause (i) ~~for an assignment~~ and clause (ix) of ~~Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ the preceding clause (~~each, an “Incremental Lender”~~b) 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~~ tested at the time of the execution of the acquisition agreement related to such ~~effectiveness~~ Limited Condition Acquisition (provided, that such Incremental Term Lenders shall ~~have been paid~~ not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (~~including, without limitation, any agreed upon upfront or arrangement fees owing to~~ ii) the ~~Administrative Agent to~~ representations and warranties of the ~~extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions~~ Borrowers set forth in this ~~Section 2.15~~ Agreement shall be true and correct in all material respects (other 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 (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of 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 result of a failure of such representations to be accurate; and (iii) the Administrative Agent shall have ~~been satisfied~~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. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment,~~ Assumption Agreement. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and ~~at such time,~~ all action as may be reasonably necessary to ensure that (i) ~~Schedule 2.01 shall be deemed modified to reflect the revised~~ all Incremental ~~Commitments~~ Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the ~~affected Lenders~~ outstanding applicable Class of Term Loans on a pro rata basis, and (ii) ~~to the extent requested by any~~ all Revolving Facility Loans in respect of Incremental ~~Lender~~Revolving Facility Commitments, ~~Term Notes or Revolving Notes~~when originally made, ~~as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ are included in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of ~~outstanding Term Loans of~~ the applicable ~~Tranche on a pro rata basis (based on the relative sizes~~ Class of ~~the various~~ outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Parent agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term SOFR Loans ~~add such Incremental Term~~ or Eurocurrency Rate Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Jazz Pharmaceuticals PLC)

Incremental Commitments. (a) Lead Borrower may at any time and from time to time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide (x) an increase in Revolving Commitments in existence at such time (if applicable) (a “Revolving Commitment Increase”), (y) one or more ~~additional~~ Tranches of ~~Revolving Commitments~~ revolving commitments (an “Additional/Replacement Revolving Commitment”) or (z) Incremental Term Loan Commitments (such Incremental Term Loans incurred in connection therewith, ~~each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively~~ together with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to ~~Borrower~~ the Borrowers 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 Lead 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 U.S. Dollars or, subject to the consent of the Administrative Agent (not to be unreasonably withheld, delayed or ~~an Alternative Currency~~conditioned), another currency as determined by the Lead Borrower and the applicable Incremental Lenders, (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~~25,000,000, (v) the aggregate principal amount of ~~any Loan or Commitment~~Loans and/or Commitments, as applicable, pursuant to an any Incremental Facility on the date of ~~the~~ any 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~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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, provided, however, that this clause (v) shall not apply to any Permitted ABL Debt incurred as an Incremental Term A Loan Commitment or Incremental Term A Loan, any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment to the extent it constitutes a Permitted Refinancing Indebtedness, (vi) the proceeds of all Incremental Facilities incurred by ~~Borrower~~ the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, ~~any~~ the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms (other than upfront, arrangement, structuring, underwriting, consent, amendment and other fees and immaterial terms, which shall be determined by the Lead Borrower) as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental ~~Amendment~~Amendment (subject to, solely with respect to Incremental Term A Loans, modifications reasonably customary for a term “A” loan facility (including any financial maintenance covenant), as jointly determined by the Lead Borrower and the Administrative Agent (and any such determination thereof shall be conclusive and binding on all parties)), 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date for Term Loans as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of MACROBUTTON DocID then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose, (x) Incremental Term A Loans, (y) interim loan financings that ~~Extendable Bridge Loans may have a maturity date earlier than~~ provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest Maturity Date~~ requirements of ~~all then outstanding Term Loans~~ this clause (I) and ~~the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~(z) 364-day bridge 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, 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 denominated in Dollars, if the Effective Yield for any such Incremental Term Loans (other than Incremental Term A Loans) incurred prior the date that is six (6) months after the Second Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than ~~0.50~~0.75% per annum, the Applicable Margins for ~~such~~ all then outstanding Initial Term Loans shall be increased as of such date (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”); ) (provided that any increase in the Effective Yield of any then outstanding Initial Term Loans attributable to a Term SOFR floor or alternative base rate floor in respect of such Incremental Term Loans shall be in the form of an increase to Term SOFR floor or Base Rate floor) 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ Tranche of any then-existing Revolving ~~Loans and the Closing Date~~ Commitments to which such Revolving ~~Commitments~~Commitment Increase represents an increase of, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under ~~the~~ such Revolving Commitment Increase shall be ~~deemed~~ identical to ~~be Initial~~ the existing Revolving Loans ~~(including, without limitation, the following: (A) the rate~~ under such Tranche of ~~interest applicable to the~~ existing 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 LoansCommitments, (x) the ~~maturity, interest rate~~ terms and ~~fees~~ provisions of any Tranche of Additional/Replacement Revolving ~~Commitments may differ, so long as~~ Facility shall be on terms and pursuant to documentation to be determined between the Lead Borrower and the lenders providing such Tranche of Additional/Replacement Revolving Facility; provided that to the extent any other Revolving Commitments are outstanding at such time, such Tranche of Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of any then outstanding Revolving ~~Loans~~Commitments and no Tranche of Additional/Replacement Revolving Commitments shall be subject to any amortization, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from ~~those of other Tranches of Revolving~~ any then outstanding Loans and 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~~ any then outstanding Loans and Commitments; except for maturity, interest rate, fees, currencies and other economic terms and terms and provisions customary for revolving facilities (including any financial maintenance covenant) or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental ~~Term Loans and Incremental Revolving Loans~~ Facilities (and all interest, fees and other amounts payable thereon) incurred by ~~Borrower~~ the Borrowers shall be Obligations of ~~Borrower~~ the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans and Commitments secured by the Security Agreement and guaranteed under each 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~~Guaranty, (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~~2.01(b) (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,~~ Tranche for all purposes of this Agreement and the other applicable Credit ~~Documents~~ Documents, (xiv) any Incremental Term A Loans shall be provided primarily by Lenders that are Regulated Banks and (~~xiv~~xv) all Incremental Commitment Requirements are satisfied.. Notwithstanding the foregoing, Lead Borrower may, in its sole discretion, notify the Administrative Agent in writing of its election to deem any Commitments incurred under this Section 2.15 as fully drawn on the date of the establishment of such Commitments; provided that if Lead Borrower makes such election, the full amount of such Commitments incurred under this Section 2.15 shall be deemed to be incurred as Indebtedness at the time of such election and thereafter for purposes of calculating the Consolidated First Lien Net Leverage Ratio, Consolidated Secured Net Leverage Ratio, Consolidated Total Net Leverage Ratio and Consolidated Fixed Charge Coverage Ratio, in each case, pursuant to the definition of “Incremental Amount”, this Section 2.15, Section 10.01 and Section 10.04. MACROBUTTON DocID (b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, ~~Borrower~~the Borrowers, 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 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 the extent requested by any Incremental Lender, Term Notes with respect to Incremental Term Loans or promissory notes with respect to Incremental Revolving ~~Notes, as applicable,~~ Loans will be issued at ~~Borrower’s~~ Borrowers’ expense to such Incremental Lender, to be in conformity with the 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)~~Agent, 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~~Borrowers, 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate~~ Term SOFR Term 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 Rate~~ Term SOFR Term 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 any the Administrative Agent of ~~the LIBO Rate,~~ 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~~ Notwithstanding anything to ~~compliance~~ the contrary contained in this Agreement or any other Credit Document, each Incremental Amendment may, with the consent of the Borrowers, the Administrative Agent and MACROBUTTON DocID each applicable Incremental Lender(s), and without the consent of any other ~~applicable requirements set forth~~ Lender, amend this Agreement and each other Credit Document as may be necessary or appropriate, in the judgment of the Lead Borrower and the Administrative Agent (and any such determination thereof shall be conclusive and binding on all parties), (i) to effect the provisions of 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: (iii) ~~the Lenders~~ with respect to ~~the relevant series of Term Loans~~ any Revolving Commitment Increases and/or ~~Commitments being extended~~Additional/Replacement Revolving Commitments, ~~repriced or refinanced are offered the opportunity~~ to ~~participate in such transaction on a pro rata basis (~~modify this Agreement 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.oth

Appears in 1 contract

Sources: Amendment and Restatement Agreement (VERRA MOBILITY Corp)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (i) one or more ~~Lenders~~ new term loan commitments (~~or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a~~ the “~~Revolving Commitment Increase~~New Term Loan Commitments”), (ii) one or more additional ~~Tranches~~ tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “~~Additional/Replacement~~ Revolving ~~Commitment”) or Incremental~~ Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. (b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Term B-1 Loans, the Revolving Credit Commitments and the Revolving Credit Loans ~~incurred in connection therewith~~and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to ~~Borrower~~ this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and ~~conditions contained in this Agreement and in~~ provisions that differ from Term Loans outstanding on the ~~relevant Incremental Amendment, provide commitments and/or make~~ date on which such New Term Loans ~~pursuant thereto; it being understood and agreed, however, that (i) no Lender~~ are made shall be ~~obligated to provide an Incremental Facility~~ designated as a ~~result~~ separate Class of ~~any such request by Borrower~~Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, ~~(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~~Lenders, 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 and the Borrower, to effect the provisions of this Section 2.17. (c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) ~~each Incremental Facility~~ if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be ~~denominated in Dollars or an Alternative Currency~~increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the ~~amount~~ same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments 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 $10,000,000Class are effective, (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~~foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. (d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-~~Based Incremental Facility Test~~existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any ~~Incurrence-Based Incremental Amount~~ related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be ~~incurred thereunder on~~ implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or 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 other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt any ~~Tranche~~ “MFN” protection applicable to such Additional Revolving Credit Commitments. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental ~~Term Loan Commitments being provided thereunder (which Tranche shall~~ Amendment, are to be ~~a new Tranche (i.e., not~~ of the same ~~as any existing Tranche~~ Class of ~~Incremental~~ an Existing Class of Term Loans, ~~Incremental~~ when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan ~~Commitments~~ is made, or ~~other~~ by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans), ~~unless~~ then the ~~requirements of Section 2.15(c) are satisfied), which designation~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (~~viii~~i) if to ~~be incurred as a new Tranche of Incremental~~ the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such ~~Incremental~~ New Term Loans shall ~~have~~ be ratably increased by the ~~same terms as each other Tranche~~ aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect ~~immediately~~ to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the ~~relevant Incremental Amendment~~proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), ~~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 each new Tranche of Incremental Term Loans~~ shall be ~~entitled to share in mandatory prepayments~~ accompanied by accrued interest on ~~a ratable basis with~~ the ~~other Tranches of Term~~ Revolving Credit Loans ~~(unless the holders of the Incremental Term Loans of~~ being prepaid and any ~~Tranche agree to take a lesser share of~~ costs incurred by 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (Lender 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~promptly notify each Lender as~~ not apply 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (WideOpenWest Finance, LLC)

Incremental Commitments. (a) ~~Borrower may at~~ After the Closing Date has occurredAt any time ~~and~~ after the end of the Covenant Adjustment Period, the Borrower may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed 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 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 Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the ~~date of incurrence plus (y)~~ case may be, in their sole discretion; provided, that each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based Incremental Facility Test~~Administrative Agent and, ~~any Incurrence-Based Incremental Amount that may~~ to the extent the same would be ~~incurred thereunder on such date~~required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (viwhich approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent (~~i.e.~~which approval shall not be unreasonably withheld, ~~not~~ conditioned or delayed)), (ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become 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 shall 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, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, ~~unless the requirements of~~ no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section ~~2.15(c) are satisfied), which designation~~ 2.21 and any election to do so shall be ~~set forth~~ in the sole discretion of such Lender. (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental ~~Amendment~~Term Loans and/or Incremental Revolving Commitments; provided, that: (~~viii~~I) if any (x) commitments to ~~be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ make additional Initial Term Loans shall have the same terms as ~~each other Tranche~~ the Initial Term Loans, and shall form part of the same Class of Initial Term Loans ~~as in effect immediately prior to the effectiveness of the relevant~~ and (y) 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 each new Tranche of 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 Revolving Commitments shall have ~~(a) a Maturity Date of no earlier than~~ the ~~Term Loans Latest Maturity Date~~ same terms as of the ~~date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of~~ then outstanding ~~Term Loans~~ Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then ~~longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest~~ latest Revolving Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ Commitments, (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 (EII) the ~~Revolving Commitment Increase~~ Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank ~~pari passu~~ equally and ratably in right of ~~payment and~~ security with the Initial ~~Revolving~~ 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 be subject to a Permitted Junior Intercreditor Agreement) or shall be unsecured, (III) (A) the final maturity date 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 earlier than the 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 ~~maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long~~ same terms as the Initial Term Loans or (y) 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~~ shall be reasonably satisfactory to the Administrative ~~Agent~~Agent (it being understood that, (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 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, (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 ~~such consent, if any, would be required under Section 13.04(b)~~ that any term is added 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~~ benefit 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Other Incremental Term Loans, ~~and notwithstanding anything~~ no consent shall be required from Term Lenders to the ~~contrary set forth in Section 2.09,~~ extent that such ~~new Incremental~~ term is (a) also added for the benefit of the Term Loans ~~shall be added to~~ or (~~and form part of~~b) ~~each Borrowing of outstanding Term Loans of~~ is only applicable after the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 Initial 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.Maturity Date),

Appears in 1 contract

Sources: Credit Agreement (Enhabit, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Valley Telephone Co., LLC)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender or any other person selected by the Borrower which becomes a Lender by signing an Incremental Assumption Agreement (it being understood that no existing Lender will be under any obligation to provide any Incremental Term Loan Commitment or Incremental Revolving Facility on Commitment)) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date of the incurrence thereof~~ case may be, in their own discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $10,000,000 and a ~~new Tranche~~ minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans), unless the requirements of Section 2.15(c)~~ and/or Incremental Revolving Facility Commitments are ~~satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ requested to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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% become effective (the “~~MFN Pricing Test~~Increased Amount Date”); 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 (Eiii) 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 Revolving ~~Commitment Increase shall rank pari passu in right of payment and security with the Initial~~ Facility Loans (“Other 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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 have ~~been delivered~~ (x) substantially identical terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Revolving Facility Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Revolving Facility Loans, (iv) except as to pricing, amortization and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) ~~all fees required to~~ the same terms as the Revolving Facility or (y) such other terms as shall 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~~ 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 Loans in the initial primary syndication thereof) in respect of any Other Revolving Loans or Incremental Term Loans shall be the same as that applicable to the ~~extent~~ Revolving Facility Loans; except that the interest rate margin in respect of any Other Revolving Loans or Incremental Term Loans (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 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 Loans or Incremental Term Loans in the initial primary syndication thereof), respectively, by no more than 1/4 of 1% (it ~~served~~ 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 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 ~~arranger~~ 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 1/4 of 1% higher than the Applicable Margin for the ~~Incremental Commitments~~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)~~, (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~~Assumption Agreement. Each of the parties hereto hereby agrees that, ~~and at such time~~upon the effectiveness of any Incremental Assumption Agreement, ~~(i) Schedule 2.01~~ this Agreement shall be ~~deemed modified~~ amended to the extent (but only to the extent) necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ Incremental 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 ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders, as the case may be, pursuant to each Incremental Amendment~~ Revolving Facility Commitment shall ~~constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to~~ become effective under 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: Section 2.22 unless (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 remain 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 (iii) on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the ~~making of~~ Borrower shall be in Pro Forma Compliance after giving effect to such ~~new~~ 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. (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 Revolving Loans), ~~and notwithstanding anything to the contrary set forth~~ when originally made, are included in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of)~~ each Borrowing of outstanding ~~Term~~ Revolving Facility Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.17 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Aeroways, LLC)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility on Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date of the incurrence thereof~~ case may be, in their own discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $10.0 million and a ~~new Tranche~~ minimum amount of $50.0 million or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless the requirements of Section 2.15(c~~(iii) ~~are satisfied), which designation shall be set forth~~ in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make Extended Maturity Term B Loans ~~shall have~~ or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the ~~same terms as each other Tranche of~~ Extended Maturity Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other 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, 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 denominated in Dollars, if the 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 (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)~~iv) ~~that may differ from those~~ in the case of ~~other Tranches of Term Loans~~Incremental Revolving Facility Commitments, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing whether such Incremental ~~Term Loans than the provisions applicable to the existing Term Loans or as~~ Revolving Facility Commitments 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~~ Extended Maturity Revolving ~~Loans (including, without limitation, the following: (A) the rate of~~ Facility Commitments or commitments to make revolving loans with 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~~ rates and/or 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 and/or 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~~ and/or other terms ~~that may differ~~ different 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 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 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, (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)~~ Extended Maturity Revolving Facility Commitments (~~with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental~~ “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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 have ~~been delivered~~ (x) the same terms as the Extended Maturity Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other 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 Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Extended Maturity Term B Loans, (iv) except as to interest rates, fees and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) ~~all fees required to~~ the same terms as the Revolving Facility Loans under the Extended Maturity Revolving Facility Commitments or (y) such other terms as shall 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~~ 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 effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended 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 but only to the ~~effectiveness of each Incremental Amendment, and at such time, (i~~extent) ~~Schedule 2.01 shall be deemed modified~~ necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ 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 ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother 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, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) the Borrower shall be in Pro Forma Compliance (without giving effect to the proviso in the definition of Total First Lien Senior Secured Net Debt) 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 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 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 outstanding amount of Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes. (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) in the form of additional Extended Maturity Term B Loans, when originally made, are included in each Borrowing of outstanding Extended Maturity Term B 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 effect the foregoing. (e) Notwithstanding anything to the contrary ~~contained above~~ in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section ~~2.15~~2.21), pursuant to one or more offers made from time to time by 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 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 ~~Commitments provided by~~ 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 or (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 ~~Lenders,~~ Assumption Agreement and such other documentation as the ~~case may be~~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, ~~pursuant~~ fees, amortization, final maturity date and participation in prepayments (which shall, subject to ~~each Incremental Amendment~~ 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 ~~constitute a new Tranche~~have (x) the same terms as the Extended Maturity 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 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 ~~separate~~ determined by the Borrower and ~~distinct from~~ set forth in the ~~existing Tranches pursuant to this Agreement; provided that~~Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall (x) be a Revolving Facility Commitment with the ~~consent~~ 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~~, delayed or conditioned)~~) and furnished to the other parties hereto. (g) Upon the effectiveness of any such Extension, the ~~parties to a given Incremental Amendment may specify therein that~~ 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 ~~Incremental Term Loans made pursuant thereto shall constitute part of~~other Loan Documents, ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (i) ~~the~~ if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term ~~Loans to be made pursuant to~~ Loan having the terms of such ~~Incremental Amendment shall have the same Borrower, the same Maturity Date~~ Extended Term Loan and ~~the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;~~ (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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~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 ~~new Incremental~~ 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 ~~added~~ 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 form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (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 Extended Maturity Term B 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 Extended Maturity Term B 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 ~~new Incremental~~ Refinancing Term ~~Loans pursuant to Section 2.01(b)) on a pro rata basis~~Loans. To In addition, notwithstanding the ~~extent~~ foregoing, the ~~provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental~~ 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 ~~then outstanding Borrowings~~ time of ~~LIBO Rate Loans~~ incurrence of such ~~Tranche, it is acknowledged that the effect thereof may result in such new Incremental~~ Refinancing Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLoans), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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:~~ 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 aggregate amount of ~~any Incremental~~ such Refinancing Term Loans does not exceed the ~~sum of (x) the principal~~ aggregate amount of Revolving Facility Commitments terminated at 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, time of incurrence thereof and (zii) ~~fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to~~ if the ~~establishment and incurrence of such Incremental Term Loans.~~Revolving Facility

Appears in 1 contract

Sources: Amendment Agreement (CAESARS ENTERTAINMENT Corp)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~incurrence), (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Term B-12 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding ~~Initial~~ Term B-12 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-12 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (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 (~~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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO ~~Rate,~~ Rate 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 (Iridium Communications Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ Agent may, by written notice to the Administrative Agent from time to ~~time 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”)~~time, ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ establish Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ with respect to any Borrowers in an amount not to exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the ~~incurrence thereof shall not exceed~~Borrower Agent, ~~when taken together with any~~ 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 ~~Pari Passu Notes~~Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, ~~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~~ the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 Incremental Revolving Facility ~~Test, any Incurrence-Based~~ Lender is a Revolving Facility Lender prior to the establishment of such Incremental ~~Amount that may be incurred thereunder on such date,~~ Revolving Facility Commitments. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ established (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum aggregate amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to ~~the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~become effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms ~~and provisions of any Revolving Commitment Increase shall be identical to~~ as the Initial Revolving Loans ~~and~~ 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 ~~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~~“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, ~~without limitation~~whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the 2024 Refinancing Term B Loans or (y) commitments to make term loans with pricing, ~~the following:~~ maturity, amortization, participation in mandatory prepayments and/or other terms different from (Axw) ~~the rate of interest applicable~~ at all times on and prior to the ~~Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving~~ First Amendment Effective Date (before giving effect thereto), Term B Loans, (Byx) ~~unused line fees, fronting fees~~ at all times on and ~~letter of credit participation fees applicable to~~ after the ~~Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate~~ First Amendment Effective Date (after giving effect thereto) 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~~ Second Amendment Effective Date, 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)~~2023 Refinancing Term B Loans and, (Ezy) at all times on and after the Second Amendment Effective Date (after giving effect ~~to such Revolving Commitment Increases~~thereto), 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,~~ 2024 Refinancing Term B Loans and (Ez) at all times on and after the ~~Revolving Commitment Increase shall rank pari passu in right of payment and security with~~ Fourth Amendment Effective Date (after giving effect thereto), 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 satisfactory to the Administrative Agent, (xii) all 2024 Incremental Term ~~Loans and Incremental Revolving~~ B Loans (~~and all interest~~such term loans at any given time, 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 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, (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 “Other 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~~ The Borrower Agent and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional 2024 Refinancing Term B Loans, 2024 Incremental Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the same terms as the 2024 Refinancing Term B Loans, 2024 Incremental 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 Agent, junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental 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 2024 Refinancing Term B Loans and the 2024 Incremental 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 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below), (iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term Facility Maturity Date applicable to each of the 2024 Refinancing Term B Loans and the 2024 Incremental 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 Agent and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Refinancing Term B Loans and the 2024 Incremental 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 such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of each of the 2024 Refinancing Term B Loans and the 2024 Incremental Term B 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 Agent, 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 other clauses of this proviso, be determined by the Borrower Agent and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) ~~all fees required~~ substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date or (b) 2024 Incremental Term B Loans on the Fourth 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 (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date byand/or (b) 2024 Incremental Term B Loans on the Fourth Amendment Effective Date by, in each case, 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 2024 Refinancing Term B Loans or 2024 Incremental Term B Loans, as applicable, 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 ~~it served as~~ any portion of the ~~arranger for~~ 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 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 calculation of the Term Yield Differential to the ~~effectiveness~~ extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of ~~each Incremental Amendment, and~~ three months’ duration at such time, ~~(i) Schedule 2.01 shall be deemed modified~~ and, with respect to ~~reflect~~ such excess, the ~~revised Incremental Commitments of the affected Lenders and (ii)~~ “Term SOFR floor” applicable to the ~~extent requested by any~~ outstanding 2024 Refinancing Term B Loans or 2024 Incremental ~~Lender,~~ Term ~~Notes or Revolving Notes~~B Loans, as applicable, ~~will~~ shall be ~~issued at Borrower’s expense~~ 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 2024 Refinancing Term B Loans or 2024 Incremental ~~Lender~~Term B Loans, as applicable, then outstanding; provided, further, that this clause (vii) shall not be applicable to be 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 Facility Maturity Date applicable to the 2024 Refinancing Term B Loans or the 2024 Incremental Term B Loans, as applicable (this clause (vii), the “MFN Provision”); provided, further that, with respect to the 2024 Incremental Term B Loans, the MFN Provision shall only apply to Subject Term Loans that are incurred after the Fourth Amendment Effective Date and on or prior to the 12 month anniversary of the Fourth Amendment Effective Date; (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 ~~conformity~~ the case of Other Revolving Loans secured by Liens that are junior in right of security with the ~~requirements~~ 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 ~~Section 2.05~~ Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans, in each case, on a junior basis) than the 2024 Refinancing Term B Loans and/or the 2024 Incremental Term B Loans in any mandatory prepayment hereunder; and (~~with appropriate modification~~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 ~~needed~~ (but only to the extent) necessary to reflect the ~~new~~ existence and terms of the Incremental ~~Loans~~ 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 ~~Incremental Commitments made~~ any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by ~~such Incremental Lender~~the Administrative Agent, the Borrower Agent and any other applicable Borrower and furnished to the other parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Agent and (~~not~~ B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to ~~be unreasonably withheld~~finance any Permitted Business Acquisition or any other similar permitted Investment, ~~delayed or conditioned~~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 have occurred or be continuing or would result therefrom and (ii) the ~~parties~~ Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent 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 or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a ~~given~~ post-closing basis to the extent permitted by the applicable Incremental ~~Amendment~~ Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrowers agree that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ SOFR Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower Agent to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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) and~~ terms (~~ii)~~ “Pro Rata Extension Offers”), the ~~amount~~ Borrower Agent is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of ~~any Incremental Term~~ such Lender’s Loans ~~does not exceed~~ and/or Commitments of such Class and to otherwise modify the ~~sum~~ terms of ~~(x)~~ such Lender’s Loans and/or Commitments of such Class pursuant to the ~~principal amount~~ terms 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.relevant Pro Rata Extension Of

Appears in 1 contract

Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)

Incremental Commitments. (a) So long as no Default or Event of Default then exists or would result therefrom, the Borrower ~~may at any time and from time~~ shall have the right to ~~time~~ request on one or more occasions that one or more Lenders ~~(or~~ and/or one or more other Eligible ~~Transferees who will become Lenders~~Assignees provide (A) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such~~ under a given Tranche of Incremental Term Loans ~~incurred~~ as designated in ~~connection therewith, each, an “~~the Incremental ~~Term Loan” and, collectively,~~ Commitment Agreement in accordance with the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental ~~Amendment~~Commitment Agreement, ~~provide commitments and/or~~ make ~~Loans~~ Incremental Term Loans, pursuant ~~thereto;~~ thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, ~~that~~ that: (i) no Lender shall be obligated to provide an Incremental ~~Facility~~ Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by the Borrower, ; (ii) any Lender ~~(including any~~ or other Eligible ~~Transferee who will become a Lender)~~ Assignee may so provide an Incremental ~~Facility~~ Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent or (y) is providing an Increased Revolving Loan Commitment shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent, the Swingline Lender and the Issuing Lenders; (iii) each provision of Incremental ~~Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available~~ Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a ~~given~~ particular Incremental ~~Amendment~~ Commitment Agreement shall be in a minimum aggregate amount (for all Lenders ~~which provide such Incremental Facility thereunder (including~~ and other Eligible ~~Transferees~~ Assignees who will become ~~Lenders~~Lenders pursuant thereto) of ~~at least~~ $~~10,000,000~~25,000,000 and each provision of Increased Revolving Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000; (iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established; (v) ~~the aggregate principal amount of any Loan or Commitment, as applicable,~~ each Incremental Commitment Agreement pursuant to an which 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 Term Loan Commitments are being provided shall specifically ~~designate, in consultation with~~ designate the ~~Administrative Agent, any~~ Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of ~~Incremental~~ Term ~~Loans,~~ Loans or Incremental Term Loan ~~Commitments or other Term Loans),~~ Commitments) unless the requirements of following Section ~~2.15(c~~1.11(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (xiii) each Lender ~~(including any Eligible Transferee who will become a Lender)~~ agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental ~~Amendment~~ Commitment Agreement 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~~ Commitment Agreement as provided in Section ~~2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans~~1.01(c) and such Loans shall thereafter be deemed to be Incremental ~~Revolving Loans or Incremental~~ Term Loans under such ~~Tranche, as applicable,~~ Tranche for all purposes of this Agreement and the other ~~applicable~~ Credit Documents or (y) an Increased Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement; (vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred; (viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred; (ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, the Borrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time; (x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Initial Term Loans plus 25 basis points (unless the interest rate margins applicable to the Term Loans are increased to the extent necessary to achieve the foregoing), (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Initial Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such Initial Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity) and (~~xiv~~iii) ~~all~~ if the lowest permissible Eurodollar Rate is greater than 1.50% or the lowest permissible Base Rate is greater than 2.50% for such Incremental ~~Commitment Requirements~~ Term Loans, the difference between such “floor” and 1.50%, in the case of Eurodollar Loans, or 2.50%, in the case of Base Rate Loans, shall be equated to interest rate margin for purposes of clause (i) above; (xi) except as provided above, the terms and conditions applicable to Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that to the extent such terms are ~~satisfied~~materially different from those of the Initial Term Loans, such terms shall be reasonably satisfactory to the Administrative Agent; and (xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request. (b) At the time of ~~the~~ any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section ~~2.15~~1.11, (i) the 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 such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible ~~Transferee~~ Assignee which agrees to provide an Incremental Term Loan Commitment (~~each,~~ each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental ~~Amendment~~ Commitment Agreement (~~which~~ it being understood that a single Incremental Commitment Agreement shall ~~not require~~ be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the ~~consent~~ Borrower) substantially in the form of ~~any other Lender~~Exhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental ~~Commitment~~ Term Loan Commitment(s) provided therein to occur on the date ~~on which (w) a fully executed copy of~~ set forth in such Incremental ~~Amendment~~ Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have ~~been~~ delivered such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obliga- tions to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, ~~(x) all fees required~~ from counsel 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~~ Borrower reasonably satisfactory to the Administrative Agent to (which, unless otherwise requested by the ~~extent it served~~ Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters 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~~Administrative Agent may reasonably request. 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 LenderCommitment Agreement. (c) Notwithstanding anything to the contrary contained ~~above in this Section 2.15~~above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental ~~Amendment~~ Commitment Agreement 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~~ which designation may be made in letters (~~not to be unreasonably withheld~~i.e., ~~delayed or conditioned~~A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental ~~Amendment~~ Commitment Agreement may specify therein that the respective 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~~ Commitment Agreement shall have ~~the same Borrower,~~ the same Maturity Date and the same ~~Applicable Margins~~ Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche; (ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan 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 Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of Initial Term Loans shall be determined in accordance with Section 4.02(b)); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section ~~2.09~~1.02, such ~~new~~ Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the ~~applicable~~ respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender ~~holding Term Loans under the respective Tranche of Term Loans participates~~ will participate proportionately in each then outstanding Borrowing of ~~Term~~ Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (~~after giving effect to~~ by amount) in each Borrowing as they had before the ~~incurrence~~ making of ~~such~~ the new Incremental Term Loans ~~pursuant to Section 2.01(b)) on a pro rata basis~~of such Tranche. To the extent the provisions of the preceding clause (iii) require that ~~Incremental~~ Lenders making new Incremental Term Loans add ~~such Incremental Term Loans~~ the same to ~~the~~ then outstanding Borrowings of ~~LIBO Rate Loans of such Tranche~~Eurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having ~~irregular~~ short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding ~~LIBO Rate~~ Eurodollar Loans ~~of such Tranche~~ and which will end on the last day of such Interest Period). (d) Upon each increase in the Revolving Loan Commitments pursuant to this Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letter of Credit Outstandings and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the RL Percentage of such additional Lender (after giving effect to such Increased Revolving Loan Commitments) and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Revolving Loan Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), which ~~irregular interest periods~~ prepayment shall be ~~permitted notwithstanding anything~~ accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances~~ transactions effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (Vanguard Health Systems Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, request Incremental Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (which may include any existing Lender; provided that no such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 existing Lender shall be obligated to provide ~~an Incremental Facility as a result of~~ any such ~~request by Borrower~~Incremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which, for Incremental Commitments comprised of Term B Loan Commitments and Other Term Loans, shall be in minimum amount of $50,000,000 or, if less, the remaining Incremental Amount, and in integral multiples of $10,000,000 in excess thereof), (ii) ~~any Lender~~ the date on which such Incremental Commitments are requested to become effective (~~including any Eligible Transferee who will become a Lender~~the “Increased Amount Date”) ~~may so provide an Incremental Facility without the consent of any other Lender,~~ and (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 whether such Incremental ~~Facility thereunder~~ Commitments are to be Term B Loan Commitments, Revolving Credit Commitments or commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental “Other Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental 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 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~~ 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 shall specify the terms of the applicable Incremental Commitments; provided 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 rank pari passu in right of payment and of security with (including being guaranteed by the same Guarantors and 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 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 Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity of any 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 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 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 ~~require~~ 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 other ~~Lender)~~Loan Document as may be necessary or appropriate, ~~with~~ in the ~~effectiveness~~ opinion 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, 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 (xii)(A) ~~all fees required to~~ above, the initial yield on any Incremental Term Loan Commitment shall 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~~ determined by the Administrative Agent to be equal to the ~~extent it served as~~ sum of (x) the ~~arranger~~ interest rate margin above the Adjusted Eurodollar Rate for loans under the Incremental ~~Commitments),~~ Term Loan Commitment that bear interest based on the Adjusted Eurodollar Rate (which shall be increased by the amount that any “Eurodollar floor” applicable to 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 (y) ~~all~~ if the Incremental Term Loan Commitment ~~Requirements are satisfied~~is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, ~~and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender~~ expressed 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~~ a percentage of the ~~affected Lenders and (ii)~~ Incremental Term Loan Commitment, being referred to herein as “OID”), the ~~extent requested~~ amount of such OID divided by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderfour. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided~~ Commitment shall become effective under this Section 2.12 unless (i) 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 ~~Lender~~ 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 ~~Incremental Lenders~~Event of Default shall 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, ~~pursuant~~ have been (or were required to ~~each Incremental Amendment shall constitute a new Tranche, which shall be separate~~ be) delivered immediately prior to 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of Incremental Loans and Incremental Commitments) is equal to or less than 3.00:1.00 (assuming in the case of any Revolving Credit Commitment Increase that the entire amount thereof is fully drawn) and (v) there shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including any Person becoming a Lender as part of such ~~new~~ 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 due and payable on or before the Increased Amount 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 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 ~~pursuant to Section 2.01(b))~~ on a ~~pro~~ pro-rata basis. To Section 3.05 shall not apply to any conversion of Eurodollar Rate Loans to Base Rate Loans reasonably required by the ~~extent~~ Administrative Agent to effect the ~~provisions~~ 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 ~~preceding clause~~ other Loan Documents, (ii) shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) ~~require that Incremental Lenders making new~~ shall make an Incremental Term ~~Loans add~~ Loan or provide a Revolving Credit Commitment Increase to the Borrower in a principal amount equal to such Incremental ~~Term Loans~~ 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 ~~the then outstanding Borrowings of LIBO Rate Loans~~ 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 ~~Tranche~~Revolving Credit Commitment Increase and (ii) if, ~~it is acknowledged that~~ on 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 Rate Loans date of such ~~Tranche and which will end on the last day of such Interest Period)~~Revolving Credit Commitment Increase, ~~which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by~~ 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 ~~LIBO Rate~~outstanding Revolving Credit Loans based on each such Revolving Credit Lender’s pro rata 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 Lenders hereby agree that the minimum borrowing, pro-rata borrowing and pro-rata payment requirements contained elsewhere in ~~such circumstances~~ this Agreement shall not apply to any transaction that may be effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (Altisource Portfolio Solutions S.A.)

Incremental Commitments. (a) Each Incremental Lender hereby agrees, severally and not jointly, to make an Incremental Loan to the Borrower ~~may at any time and from time~~ on the Incremental Commitment Effective Date in Dollars in an aggregate principal amount equal to ~~time request one or more Lenders~~ the amount set forth opposite such Incremental Lender’s name on Schedule I attached hereto (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental ~~Term Loan~~Commitment” and, collectively, the “Incremental ~~Term Loans” and~~Commitments”), ~~collectively with any Revolving Commitment Increase~~ on the terms set forth herein and ~~any Additional/Replacement Revolving Commitment~~in the Credit Agreement (as amended hereby), ~~each, an “Incremental Facility”~~ and ~~collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth ~~in the applicable~~ herein. The Incremental ~~Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term~~ Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ “Loans” as defined in the Credit Agreement (~~including, without limitation,~~ as amended hereby) for all purposes of the ~~following: (A) the rate of interest~~ Credit Agreement having terms and provisions identical to those 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 (Loans outstanding 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 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 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, (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~~ Effective Date (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 “Existing 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 Incremental Loans shall be made as a single borrowing, with an initial Interest Period that commences on the ~~time~~ Incremental Commitment Effective Date and ends on the last day of the ~~provision of~~ Interest Period applicable to the Existing Loans on the Incremental ~~Commitments pursuant to this Section 2.15, Borrower~~Commitment Effective Date. During such initial Interest Period, 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)~~ London Interbank Offered Rate applicable to the ~~extent such consent, if any, would~~ Incremental Loans shall be ~~required under Section 13.04(b)~~ the same London Interbank Offered Rate applicable for ~~an assignment of~~ the Existing 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 as 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 satisfiedEffective Date. 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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~~ herein or in ~~this Section 2.15~~the Credit Agreement, from and after the Incremental Commitment Effective Date, the Existing Loans and the Incremental ~~Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment~~ Loans 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding single Borrowing of Term Loans for all purposes under the Credit Agreement. (c) Unless previously terminated, the Incremental Commitments of the ~~respective Tranche (after giving effect to the incurrence of such new~~ Incremental ~~Term Loans~~ Lenders pursuant to Section ~~2.01(b)~~2(a) ~~on a pro rata basis. To~~ shall terminate upon the ~~extent the provisions~~ making 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoIncremental Commitment Effective Date. (d) ~~Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new~~ Each 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: Lender (i) confirms that a copy of the ~~Lenders~~ Credit Agreement, together with ~~respect~~ copies of the financial statements referred to ~~the relevant series of Term Loans and/or Commitments being extended~~therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder and make its Incremental Loan, ~~repriced or refinanced are offered the opportunity~~ have been made available to ~~participate in~~ such ~~transaction on a pro rata basis (and on the same terms) and~~ Incremental Lender; (ii) agrees that it will, independently and without reliance upon the ~~amount of~~ Administrative Agent, any joint lead arranger or joint bookrunner, or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, including this Joinder; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the 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~~ Commitment Effective Date such Incremental Lender shall be a “Lender” and ~~expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing~~an “Incremental Lender” under, and ~~(z) fees~~ for all purposes of, the Credit Agreement, and ~~expenses (including any upfront fees~~shall be subject to and bound by the terms thereof, ~~original issue discount, underwriting discounts, amendment fees, commissions~~ and ~~arrangement, underwriting~~ shall perform all the obligations of and ~~similar fees) related to the establishment~~ shall have all rights of a Lender and ~~incurrence of such~~ an Incremental ~~Term Loans~~Lender thereunder.

Appears in 1 contract

Sources: Joinder Agreement (Progress Energy Inc)

Incremental Commitments. (a) ~~Borrower may at any time~~ Subject to the terms and ~~from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders)~~ conditions set forth herein, each Incremental Lender severally agrees to provide Incremental Commitments to the Company on the Amendment Effective Date in an aggregate commitment amount equal to its Incremental Commitment set forth opposite such Incremental Lender’s name on Schedule 1 hereto. (b) The Incremental Commitments shall take the form of an increase ~~in Revolving~~ to the existing Aggregate Commitments, and the Incremental Commitments and the Incremental Loans shall have identical terms to the existing Commitments and the existing Loans, respectively, under the Credit Agreement. (~~a “Revolving Commitment Increase”), one or more additional Tranches~~ c) The Incremental Commitments and the Incremental Loans shall be subject to the provisions of ~~Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term~~ the Credit Agreement as amended hereby and the other Loan ~~Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively,~~ Documents. On the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower andAmendment Effective Date, subject to the terms and conditions ~~contained in this Agreement and in~~ set forth herein, for all purposes of the ~~relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ Loan Documents, (i) ~~no Lender~~ each Incremental Commitment shall ~~be obligated to provide an Incremental Facility as~~ constitute a ~~result of any such request by Borrower~~“Commitment”, (ii) ~~any Lender (including any Eligible Transferee who will become~~ each Incremental Loan shall constitute a ~~Lender) may so provide an Incremental Facility without the consent of any other Lender,~~ “Loan” and (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 provided thereunder (which Tranche Lender shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans “Lender” and shall have ~~the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness~~ all of the ~~relevant Incremental Amendment, except as to purpose (which is subject to the requirements~~ rights and shall perform all of the ~~preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche~~ obligations of ~~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~~ Lender holding 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) Commitment or a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansLoan, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ Credit Agreement (~~including, without limitation,~~ as amended by this Amendment). (d) On 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 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 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, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment ~~shall~~Effective Date, subject to the satisfaction (or waiver) 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~~5 hereof, (i) (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~~ then-existing Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed)~~ immediately prior to the ~~extent 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~~ Amendment Effective Date (each, an “~~Incremental~~ Existing Lender”) ~~shall execute~~ will automatically 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 further act be deemed ~~modified~~ to ~~reflect the revised Incremental Commitments of the affected Lenders and (ii)~~ have assigned to ~~the extent requested by any~~ each Incremental Lender, ~~Term Notes or Revolving Notes~~and each Incremental Lender will automatically and without further act be deemed to have assumed, ~~as applicable~~a portion of such Existing Lender’s participations under the Credit Agreement in outstanding Letters of Credit (if any) such that, ~~will be issued at Borrower’s expense~~ after giving effect to ~~such~~ each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Lender~~, to be~~ ) participations under the Credit Agreement as amended hereby in ~~conformity with the requirements~~ Letters 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 Credit 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 remain 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 (iii) held ratably on the ~~date~~ basis of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the their respective ~~Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche~~ Commitments (after giving effect to the ~~incurrence of such new~~ Incremental ~~Term Loans pursuant to Section 2.01(b)~~Commitments) 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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~~ Existing Lenders shall assign Loans to the Incremental ~~Term Loans does not exceed~~ Lenders, and such Incremental Lenders shall purchase such Loans, in each case to the ~~sum of (x) the principal amount~~ extent necessary so that all of the ~~applicable Term Loans effectively being extended, repriced or refinanced,~~ Lenders participate in each outstanding Borrowing pro rata on the basis of their respective Commitments (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 after giving effect to the ~~establishment~~ Incremental Commitments); it being understood and ~~incurrence~~ agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained in the Credit Agreement shall not apply to the transactions effected pursuant to this clause (d). If the Company anticipates there being outstanding Loans on the Amendment Effective Date immediately after giving effect to the foregoing, the Company shall have delivered a Committed Loan Notice to the Administrative Agent in accordance with Section 2.02 of ~~such Incremental Term Loans~~the Credit Agreement.

Appears in 1 contract

Sources: Credit Agreement (Arthur J. Gallagher & Co.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to time after the earlier to occur of (x) the 60th day following the Closing Date and (y) the Syndication Date, and prior to the Maturity Date, request that the Incremental Amount be provided by one or more Incremental Revolving Facility Lenders (~~or one or more Eligible Transferees who will become Lenders~~which may include any existing Lender) willing to provide ~~an increase~~ such Incremental Revolving Facility Commitments in their own discretion; provided, that each Incremental Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, Facility Lender shall be subject to the ~~terms and conditions contained in this Agreement and in~~ approval of the ~~relevant~~ Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental ~~Amendment~~Revolving Lender is a Lender, ~~provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) ~~no Lender~~ the amount of the Incremental Revolving Facility Commitments being requested (which shall be ~~obligated~~ in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to ~~provide an~~ the remaining Incremental ~~Facility as a result of any such request by Borrower~~Amount), (ii) ~~any Lender~~ the date on which such Incremental Revolving Facility Commitments are requested to become effective (~~including any Eligible Transferee who will become a Lender~~the “Increased Amount Date”) ~~may so provide an Incremental Facility without the consent of any other Lender,~~ and (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 whether 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 Revolving Loan Commitments ~~being provided thereunder (which Tranche shall~~ are to be ~~a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan~~ Current Asset Revolving Facility Commitments or ~~other Term Loans), unless~~ commitments to make revolving loans with pricing and/or terms different from the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Current Asset Revolving Facility 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term “Other Revolving 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Revolving Facility 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 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Revolving Facility Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided, that (i) the Other Revolving Loans shall have ~~been delivered~~ the same guarantees as and rank pari passu or junior in right of payment and of security with the Current Asset Revolving Facility Loans and, except as to ~~the Administrative Agent~~pricing and final maturity date, shall have (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~~ same terms as the ~~arranger for the Incremental Commitments)~~Current Asset Revolving Facility Loans, as applicable, or (y) ~~all Incremental Commitment Requirements are satisfied,~~ intercreditor arrangements and such other terms as shall be reasonably satisfactory to the Revolving Facilities Agents and (zii) ~~all other conditions set forth in this Section 2.15~~ the final maturity date of any Other Revolving Loans shall ~~have been satisfied. The Administrative Agent shall promptly notify each Lender as to~~ be no earlier than the ~~effectiveness~~ Maturity Date; and provided, further, that without the prior written consent of ~~each Incremental Amendment, and at such time~~the majority of the Lenders under the Current Asset Revolving Facility, (i) ~~Schedule 2.01~~ if the Applicable Margin (which, for such purposes only, shall be deemed ~~modified~~ to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Revolving Facility Commitments (based on an assumed four year average life, e.g., 0.25% of Applicable Margin equals 1.00% in upfront or similar fees or original issue discount)) relating to the Incremental Revolving Facility exceeds the Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Revolving Loans (based on an assumed four year average life, e.g., 0.25% of Applicable Margin equals 1.00% in upfront or similar fees or original issue discount)) relating to the Current Asset Revolving Facility by more than 0.50%, the Applicable Margin relating to the Current Asset Revolving Facility shall be adjusted to be equal to the Applicable Margin for the Incremental Revolving Facility (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Incremental Extensions of Credit (based on an assumed four year average life, e.g., 0.25% of Applicable Margin equals 1.00% in upfront or similar fees or original issue discount)) minus 0.50%. 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 ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ 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 Borrower’s consent (not to be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Revolving Facility Commitment shall become effective under 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: 2.21 unless (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 remain 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 (iii) on the date of such effectiveness, both before and after such effectiveness, (x) there is no Default or Event of Default and (y) the ~~making~~ Borrower shall be in Pro Forma Compliance, (ii) the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of ~~such new Incremental Term Loans~~the Borrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and ~~notwithstanding anything~~ (iii) 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 ~~contrary set forth~~ 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 Revolving Facility Loans in ~~Section 2.09~~respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, ~~such new~~ to the extent agreed by the applicable Incremental ~~Term~~ Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Current Asset 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 all Revolving Facility Loans ~~shall be added to~~ in respect of Incremental Revolving Facility Commitments (~~and form part of)~~ other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding ~~Term~~ Revolving Facility Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Quality Distribution Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (a) one or more ~~Lenders~~ new term loan commitments (~~or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a~~ the “~~Revolving Commitment Increase~~New Term Loan Commitments”), (b) one or more additional ~~Tranches~~ tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (c) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “~~Additional/Replacement~~ Revolving ~~Commitment”) or Incremental~~ Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the Closing Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. (b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the Net Cash Proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties relating to the Credit Parties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Original Term Loans, the Original Revolving Credit Commitments and the Original Revolving Credit Loans ~~incurred in connection therewith,~~ and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to ~~Borrower~~ this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the ~~terms~~ requirements set forth in Section 5.4(d)), and ~~conditions contained~~ the Administrative Agent; (6) the Borrower shall make any payments required pursuant to Section 2.12 in ~~this Agreement~~ connection with the Incremental Commitments, as applicable, and in (7) the ~~relevant~~ Senior Secured Leverage Ratio (provided that the Senior Secured Leverage Ratio for such purpose shall exclude any cash or cash equivalents constituting proceeds of any Loans made under any proposed Incremental ~~Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ Commitments which may otherwise reduce the amount of Consolidated Net Debt) does not exceed (i) ~~no Lender shall be obligated~~ with respect to ~~provide an~~ Incremental ~~Facility as a result of any~~ Commitments (including related Loans) not to exceed $200,000,000 in the aggregate for all such ~~request by Borrower~~Incremental Commitments established following the Closing Date, 4.25 to 1.00 and (ii) ~~any Lender~~ with respect to Incremental Commitments (including related Loans) not to exceed an additional $150,000,000 in the aggregate for all such Incremental Commitments established following the Closing Date, 3.75 to 1.00, in each case, as of the applicable Increased Amount Date determined on a Pro Forma Basis (which, for the avoidance of doubt, shall be calculated as if any ~~Eligible Transferee who will become~~ proposed additional Term Loans and/or Revolving Commitments, as applicable, had been outstanding and fully borrowed). Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a ~~Lender) may so provide an~~ separate Class of Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental ~~Facility~~ Amendment may, without the consent of any other ~~Lender~~Lenders, 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 and the Borrower, to effect the provisions of this Section 2.17. (c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) ~~each Incremental Facility~~ if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Term Loans shall automatically be ~~denominated in Dollars or an Alternative Currency~~increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the ~~amount~~ same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments 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 $10,000,000Class are effective, (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~~foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. (d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Original Revolving Credit Commitments, and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Original Revolving Credit Commitments) prior to, the then-~~Based Incremental Facility Test~~existing Latest Maturity Date with respect to any Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any ~~Incurrence-Based Incremental Amount that~~ Additional Revolving Credit Commitments (and related loans) exceeds the Initial Yield then in effect for any Existing Class (or Classes) of Revolving Credit Loans by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Loans shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be ~~incurred thereunder on~~ implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or 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 other terms and conditions reasonably satisfactory to the Administrative Agent~~, any Tranche~~ . (e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental ~~Term Loan Commitments being provided thereunder (which Tranche shall~~ Amendment, are to be ~~a new Tranche (i.e., not~~ of the same ~~as any existing Tranche~~ Class of ~~Incremental~~ an Existing Class of Term Loans, ~~Incremental~~ when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBO Rate Term Loans to be converted into a Borrowing of ABR Term Loans on the date the applicable New Term Loan ~~Commitments~~ is made, or ~~other~~ by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBO Rate Term Loans on a pro rata basis. Any conversion of Borrowing of LIBO Rate Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBO Rate Term Loans), ~~unless~~ then the ~~requirements of Section 2.15(c) are satisfied), which designation~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, ~~(viii) if~~ to ~~be incurred as a new Tranche of Incremental~~ the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such ~~Incremental~~ New Term Loans shall ~~have~~ be ratably increased by the ~~same terms as each other Tranche~~ aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect ~~immediately~~ to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the ~~relevant Incremental Amendment~~proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), ~~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 each new Tranche of Incremental Term Loans~~ shall be ~~entitled to share in mandatory prepayments~~ accompanied by accrued interest on ~~a ratable basis with~~ the ~~other Tranches of Term~~ Revolving Credit Loans ~~(unless the holders of the Incremental Term Loans of~~ being prepaid and any ~~Tranche agree to take a lesser share of~~ costs incurred by 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (Lender 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~promptly notify each Lender as~~ not apply 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding ~~sentence shall~~sentence. This Section 2.17 shall supersede any provisions in Section 5.2, ~~absent manifest error, be final and conclusive and binding on all parties hereto. (d~~13.1 or 13.8(a) 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 Loanscontrary.

Appears in 1 contract

Sources: Credit Agreement (Valley Telephone Co., LLC)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time 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”)~~time, ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ establish Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ 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 (1) any Permitted ~~Pari Passu Notes~~Business Acquisition, ~~Permitted Pari Passu Loans~~ New Project or ~~Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date~~any other acquisition or other Investment that is not prohibited by this Agreement, ~~(x) the then-remaining Fixed Incremental Amount~~ as of the date the definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or other Investment is entered into or (2) any prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement of ~~incurrence plus~~ Indebtedness for which notice has been (yor is required to be) delivered in advance of such prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement, as of the date such notice is delivered) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 Revolving Facility ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ established (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the 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 Increasebecome effective, and (Eiii) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans, or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B 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 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, (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 “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans shall have ~~been delivered~~ the same terms as the Term B Loans, (ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the ~~Administrative Agent~~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 subject to clause (vii) below), (iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date; provided that the limitations set forth in this clause (iii)(A) and clause (iv) below shall not apply to Other Term Loans incurred in reliance on this proviso to this clause (iii)(A) (x) ~~all fees required~~ in an aggregate principal amount outstanding not to exceed the Permitted Inside Maturity Exclusion, (y) in the form of customary bridge loans or similar financing arrangements, the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, in each case, to a date that would satisfy the requirements of this clause (iii)(A) and clause (iv) below, or (z) in the form of term A 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 ~~paid~~ determined by the Borrower and the Incremental Term Lenders in ~~connection therewith~~ their sole discretion), such Other Term Loans shall have terms, taken as a whole, that are either (x) 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 B Loans (except for covenants or other provisions applicable only to periods after the latest Term Facility Maturity Date in effect at the time such Other Term Loans are incurred) (as determined by the Borrower in good faith) (or, at the option of the Borrower, if more restrictive, the Loan Documents are amended to contain such ~~effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent~~ more restrictive terms to the extent ~~it served~~ required to satisfy the foregoing standard for so long as ~~the arranger for the Incremental Commitments~~such more restrictive terms are in effect), (y) ~~all Incremental Commitment Requirements are satisfied, and~~ reasonably satisfactory to the Administrative Agent or (z) ~~all other conditions~~ consistent with then-current market terms (as determined by the Borrower in good faith), (iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (subject to the exceptions in the proviso set forth in clause (iii) above), (v) the Revolving Facility Loans incurred pursuant to clause (a) of this Section ~~2.15~~ 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 Revolving Facility Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Revolving Facility Loans shall be subject to a Permitted Junior Intercreditor Agreement), (vi) (A) the Revolving Facility Loans shall have ~~been satisfied. The~~ no amortization and (B) except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions, ranking as to security, financial covenants or any operational or other terms that are customarily specific to revolving credit facilities (as determined by the Borrower in good faith) (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Revolving Facility Loans shall have terms taken as a whole, that are either (x) 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 B Loans or an existing Class of Revolving Facility Commitments (except for covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date in effect at the time such Revolving Facility Loans are incurred) (as determined by the Borrower in good faith) (or, at the option of the Borrower, if more restrictive, the Loan Documents are amended to contain such more restrictive terms to the extent required to satisfy the foregoing standard for so long as such more restrictive terms are in effect), (y) reasonably satisfactory to the Administrative Agent or (z) consistent with then-current market terms (as determined by the Borrower in good faith), (vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall ~~promptly notify each Lender as~~ not exceed the All-in Yield applicable to the ~~effectiveness~~ Term B Loans on the Closing Date, except that the All-in Yield in respect of ~~each Incremental Amendment~~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 1.00%, ~~and~~ or if it does so exceed such All-in Yield by more than 1.00% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “Term 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 1.00%; provided that, to the 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 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 (x) any Subject Term Loan that is established for purposes of a Permitted Business Acquisition, New Project or other acquisition or Investment permitted hereunder, (y) any Subject Term Loan that has a maturity date that is at least one year after the Term B Facility Maturity Date or (z) any Subject Term Loan that is initially incurred under clause (i) ~~Schedule 2.01~~ or (iii) of the definition of “Incremental Amount”; (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 Term B Loans in any mandatory prepayment hereunder; and (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 and any operational or other terms that are customarily specific to revolving credit facilities (as determined by the Borrower in good faith) as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document as provided for in Section 9.08(e) and any such collateral and other documentation shall be deemed ~~modified to reflect~~ “Loan Documents” hereunder and may be memorialized in writing by the ~~revised Incremental Commitments of~~ Administrative Agent and the ~~affected Lenders~~ Borrower and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (d) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ 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) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing (1) any Permitted Business Acquisition, New Project or any other acquisition or other Investment that is not prohibited by this Agreement or (2) any prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement of Indebtedness for which notice has been (or is required to ~~be unreasonably withheld~~be) delivered in advance of such prepayment, ~~delayed~~ reduction, repurchase, redemption, defeasance, satisfaction and discharge or ~~conditioned~~other retirement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the ~~parties~~ Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent 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 or supplements to the Security Documents, which, in the case of such amendments or supplements may be delivered on a ~~given~~ post-closing basis to the extent permitted by the applicable Incremental ~~Amendment~~ Assumption Agreement, the relevant Security Documents or hereunder) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term ~~Loans add such Incremental Term~~ Benchmark Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~ 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 ~~amount~~ case 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 an offer to the ~~establishment and incurrence of such Incremental Term Loans.~~Lenders under any

Appears in 1 contract

Sources: Incremental Assumption and Amendment Agreement (QXO, Inc.)

Incremental Commitments. (a) ~~Borrower~~ The Company may ~~at any time and from time to time request~~ on one or more ~~Lenders~~ occasions, by written notice to the Administrative Agent, request the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $250,000,000 during the term of this Agreement. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and each Lender participating in the requested increase) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be approved by the Administrative Agent, each Issuing Lender and the Swingline Lender (such approval not to be unreasonably withheld)). (b) The terms and conditions (including the applicable facility fee and interest rate spreads) of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single Class with such Commitments and Loans; provided, that the Company at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Commitments. (c) The Incremental Commitments shall be effected pursuant to one or more ~~Eligible Transferees who will~~ Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 effective unless (i) on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments, no ~~Lender~~ Default shall have occurred and be ~~obligated to provide an Incremental Facility as a result of any such request by Borrower~~continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents that are qualified by materiality shall be true and correct and the representations and warranties that are not so qualified shall be true and correct in all material respects 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 that are qualified by materiality shall be true and correct and such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case as of such earlier date), (iii) the Company shall make any ~~Lender~~ payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section, (~~including~~ iv) the Company shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any ~~Eligible Transferee who will become a Lender~~such transaction and (v) ~~may so provide an~~ each guarantor shall have reaffirmed its Guarantee of the Obligations. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender not already a Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Total Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (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 Lender that 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 provided thereunder (which Tranche shall be have had a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately Commitment prior to the effectiveness of ~~the relevant~~ such Incremental ~~Amendment, except as~~ Commitments shall pay to ~~purpose (which is subject~~ Administrative Agent in same day funds an amount equal to the ~~requirements~~ product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the ~~preceding clause~~ Resulting Revolving Borrowings, (~~vi)~~iv) after the Administrative Agent receives the funds specified in clauses (ii) and ~~optional prepayment provisions and mandatory prepayment provisions~~ (~~which are governed by Section 5.02; provided that~~ iii) above, the Administrative Agent shall pay to each ~~new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with~~ Lender 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 portion 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, funds 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 difference, if positive, between (A) the ~~“MFN Pricing Test”);~~ product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (~~III~~B) the product of (1) such ~~Tranche of Incremental Term Loans may have other terms~~ Lender’s Applicable Percentage (~~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~~ calculated after giving effect to the ~~application~~ effectiveness of ~~optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing~~ such Incremental ~~Term Loans than~~ Commitments) multiplied by (2) the ~~provisions applicable to~~ aggregate amount of the ~~existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~Resulting Revolving Borrowings, (ixv) after the ~~terms and provisions~~ effectiveness of ~~any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving~~ such Incremental Commitments, ~~and, for purposes of this Agreement and~~ the ~~other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase~~ Borrowers shall be deemed to ~~be Initial~~ have made new Revolving ~~Loans~~ Borrowings (~~including, without limitation,~~ the ~~following: (A~~“Resulting Revolving Borrowings”) ~~the rate of interest applicable~~ in an aggregate amount for each Borrower equal to the aggregate amount of its Existing Revolving ~~Commitment Increase shall be~~ Borrowings and of the ~~same as~~ Types and for the ~~rate of interest applicable~~ Interest Periods specified in a Borrowing Request delivered to the ~~Initial Revolving Loans,~~ Administrative Agent in accordance with Section 2.03 (~~B) unused line fees, fronting fees~~ and ~~letter of credit participation fees applicable to~~ the ~~Revolving Commitment Increase~~ Company or such Borrower 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 deliver such ~~Revolving Commitment Increase~~Borrowing Request), (Evi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) each Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving ~~Commitment Increases, the Pro Rata Percentage~~ Borrowings. The deemed payments of the Existing Revolving ~~Commitments of each Lender may~~ Borrowings made pursuant to clause (i) above shall be ~~adjusted~~ subject to ~~give effect~~ compensation by the Borrowers pursuant to the ~~total Revolving Commitment as increased by such Revolving Commitment Increase, and (E)~~ provisions of Section 2.16 if 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~~ the effectiveness of such Incremental Commitments occurs other than on the ~~then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche~~ last day 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 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 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, (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 satisfiedInterest Period relating thereto. (bf) 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 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 notify the Lenders promptly ~~notify each Lender as~~ upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.05(a) and of the effectiveness of any Incremental Commitments, in each ~~Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect~~ case advising the ~~revised Incremental Commitments~~ Lenders of the ~~affected Lenders~~ details thereof and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ Applicable Percentages of the ~~parties to a given Incremental Amendment may specify therein that~~ Lenders after giving effect thereto and of 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 assignments required 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 remain 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 proportionatelySection 2.05(e); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 (Tyson Foods Inc)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~incurrence), (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-1 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding Initial Term B-1 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Initial Term B-1 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (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 (~~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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO ~~Rate,~~ Rate 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 (Iridium Communications Inc.)

Incremental Commitments. (a) ~~Borrower may at any time and from time~~ Each Incremental Lender party hereto hereby agrees to ~~time request one or more Lenders (or one or more Eligible Transferees who will become Lenders)~~ commit to provide ~~an increase in Revolving Commitments (a “Revolving~~ its respective Incremental Commitment ~~Increase”)~~as set forth on Schedule 1 annexed hereto, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, on the ~~“Incremental Term Loans” and, collectively with any Revolving Commitment Increase~~ terms and ~~any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and,~~ subject to the ~~terms and~~ conditions ~~contained in this Agreement and in~~ set forth below. (b) On the ~~relevant Incremental Amendment~~Effective Date (as defined below), ~~provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ (i) no each of the existing Lenders that is not an Incremental Lender shall be ~~obligated~~ deemed to ~~provide an~~ assign to each of the Incremental ~~Facility as a~~ Lenders (including those that are existing Lenders), and each of the Incremental Lenders shall be deemed to purchase from each of the applicable existing Lenders, for, in the case of Loans, L/C Advances and Swingline Loans funded by the existing Lenders (other than, in the case of Swingline Loans, the Swingline Lender), the principal amount thereof, and, in the case of unfunded participations of the existing Lenders in Letters of Credit and Swingline Loans, no consideration, such interests in the outstanding Loans and participations in Letters of Credit and Swingline Loans outstanding on the Effective Date that will result in, after giving effect to all such deemed assignments and purchases, such Loans and participations in Letters of ~~any such request~~ Credit and Swingline Loans being held by ~~Borrower~~all Lenders ratably in accordance with their Commitments after giving effect to the addition of the Incremental Commitments to the Aggregate Commitments, (ii) ~~any Lender~~ each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and have the same terms (~~including any Eligible Transferee who will become a Lender~~other than upfront fees paid to the Incremental Lenders) ~~may so provide an Incremental Facility without~~ as the ~~consent of any other Lender,~~ existing Commitments and Loans and (iii) each Incremental ~~Facility~~ Lender (that is not an existing Lender) shall ~~be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to~~ become 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely Lender with respect to ~~any syndicated Incremental Term Loan denominated in Dollars, if~~ the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lendermatters relating thereto. (c) ~~Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an~~ Each Incremental Lender ~~or Incremental Lenders~~(i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as ~~the case may be, pursuant~~ it has deemed appropriate to ~~each Incremental Amendment shall constitute a new Tranche, which shall be separate~~ make its own credit analysis and ~~distinct from the existing Tranches pursuant~~ decision to enter into this Agreement; ~~provided that~~(ii) agrees that it will, ~~with the consent of~~ independently and without reliance upon the Administrative Agent (or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not ~~to be unreasonably withheld, delayed or conditioned),~~ taking action under 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 remain 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)Credit Agreement; ~~and~~ (iii) ~~on the date of the making of such new Incremental Term Loans,~~ appoints and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the ~~LIBO Rate, in such circumstances pursuant~~ obligations which by the terms of the Credit Agreement are required to ~~the immediately preceding sentence shall, absent manifest error,~~ be ~~final and conclusive and binding on all parties hereto~~performed by it as a Lender. (d) ~~Subject to compliance with~~ For purposes of the ~~other applicable requirements~~ Credit Agreement, the initial notice address of each Incremental Lender that is not an existing Lender shall be as 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:below its signature below. (ie) ~~the Lenders~~ For each Incremental Lender that is not an existing Lender and is a Foreign Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Incremental Lender may be required to deliver to Administrative Agent pursuant to Section 3.01(e) of 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~~Credit Agreement. (iif) Immediately after 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~~Effective Date, 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 each Lender’s Commitments pursuant to the ~~establishment and incurrence of such Incremental Term Loans~~Credit Agreement shall be as set forth on Schedule 2 hereto.

Appears in 1 contract

Sources: Credit Agreement (Western Refining Logistics, LP)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time 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”)~~time, ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ establish Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ 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 ~~Pari Passu Notes~~Acquisition, ~~Permitted Pari Passu Loans~~ New Project or ~~Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date~~any other acquisition or similar Investment that is permitted by this Agreement, ~~(x) the then-remaining Fixed Incremental Amount~~ as of the date ~~of incurrence plus~~ the definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (and, solely in the case of Incremental Revolving Facility ~~Test~~Lenders, ~~any Incurrence-Based~~ 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 ~~Amount that may be incurred thereunder on~~ Term Lender is an existing Lender or such ~~date,~~ Incremental Revolving Facility Lender is an existing Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ established (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to ~~the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~become effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms ~~and provisions of any Revolving Commitment Increase shall be identical to~~ as the Initial Revolving Loans ~~and~~ 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 ~~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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B 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 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, (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 “Other 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,~~ The Borrower, the Administrative Agent (if applicable) and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the 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 subject to clause (vii) below), (iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the 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 ~~Administrative Agent~~other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) ~~all fees required~~ substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral but excluding covenants or other provisions applicable only to periods after the Latest Maturity Date then in effect) as shall 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~~ reasonably satisfactory to the Administrative Agent (it being understood that, to the extent ~~it served~~ 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 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 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) (A) 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 (B) 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 Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the ~~arranger for the Incremental Commitments),~~ Initial Revolving Loans or (y) ~~all Incremental Commitment Requirements are satisfied,~~ such other terms (including as to guarantees and (zcollateral but excluding covenants or other provisions applicable only to periods after the Latest Maturity Date then in effect) ~~all other conditions set forth in this Section 2.15~~ as shall ~~have been satisfied. The~~ be reasonably satisfactory to the Administrative Agent ~~shall promptly notify each Lender as~~ (it being understood that, to the ~~effectiveness~~ extent any financial maintenance covenant is added for the benefit of ~~each Incremental Amendment~~any Other Revolving Loan, ~~and~~ no consent shall be required from the Administrative Agent or any Lender if such financial maintenance covenant is also added for the benefit of the Initial Revolving Loan), (vii) with respect to any Subject Term Loan, the All-in Yield shall be the same as that applicable to the then-outstanding Term B Loans, 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 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 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; (iviii) ~~Schedule 2.01~~ (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 (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 and (B) there shall be no assets securing any Incremental Facilities 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 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 ~~modified to reflect~~ “Loan Documents” hereunder and may be memorialized in writing by the ~~revised Incremental Commitments of~~ Administrative Agent and the ~~affected Lenders~~ Borrower and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower (~~not to be unreasonably withheld~~or, ~~delayed~~ if such Incremental Term Loan Commitment or ~~conditioned~~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 be continuing or would result therefrom) and (ii) the ~~parties~~ Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent 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 date-down and modification endorsements, which, in the case of such amendments and title date-down and modification endorsements, may be delivered on a ~~given~~ post-closing basis to the extent permitted by the applicable Incremental ~~Amendment~~ Assumption Agreement) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~ 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 ~~does~~ 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 ~~exceed~~ earlier than five Business Days after the ~~sum~~ 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 ~~(x)~~ such Extending Lender. Each Incremental Assumption Agreement shall specify the ~~principal amount~~ terms of the applicable Extended Term Loans ~~effectively being extended~~and/or Extended Revolving Facility Commitments; provided, ~~repriced or refinanced,~~ that (yi) ~~fees and expenses (including any prepayment premium, penalties or other call protection) related~~ except as 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.inter

Appears in 1 contract

Sources: Credit Agreement (Cerence Inc.)

Incremental Commitments. (a) Any Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental Amount at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility on Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date of the incurrence thereof~~ case may be, in their own discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5.0 million and a ~~new Tranche~~ minimum amount of $20.0 million or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless the requirements of Section 2.15(c~~(iii) ~~are satisfied), which designation shall be set forth~~ in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans ~~shall have~~ 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 Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as ~~each other Tranche of Term~~ the Initial Revolving Loans or the same terms as ~~in effect immediately prior~~ the First Amendment Revolving Loans or commitments to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share make revolving loans with pricing terms and/or participation 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 or commitment reductions and/or 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 and/or other terms ~~(other than those described in preceding clauses (I) and (II)) that may differ~~ different from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ First Amendment 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~~ “Other 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 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 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, (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~~ The Borrowers and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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 Company and the Incremental Term Lenders in their sole discretion), the Other Term Loans 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 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 (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 ~~require~~ be subject to clause (viii) below), (iii) the ~~consent~~ final maturity date of any ~~other Lender~~Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date in effect on the date of incurrence, (iv) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (v) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (v) through (vii) of this proviso, be determined by the Company and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) substantially the same terms as the Initial Revolving Loans and the First Amendment Revolving Loans or (y) 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 and the First Amendment Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans and First Amendment Revolving Loans and, for the avoidance of doubt, shall not be subject to clause (ix) below), (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 and the First Amendment Revolving Loans, (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 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 (ix) 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 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%. 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). 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 ~~provided therein to occur~~ or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless on the date ~~on which (w) a fully executed copy~~ of such ~~Incremental Amendment~~ effectiveness, no Default or Event of Default shall have ~~been delivered~~ occurred and be continuing or would result therefrom. (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), 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 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 a 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 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, 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 applicable 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, 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 applicable 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 applicable Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) ~~all fees required to~~ the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 ~~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 but only to the ~~effectiveness of each Incremental Amendment, and at such time, (i~~extent) ~~Schedule 2.01 shall be deemed modified~~ necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders and (ii) to the extent requested~~ 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 any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 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, ~~delayed~~ and with the consent of each Swingline Lender and L/C Issuer, 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 ~~conditioned)~~upon or prior to the maturity date for any Class of Revolving Facility Commitments. (g) Upon the effectiveness of any such Extension, the ~~parties to a given Incremental Amendment may specify therein that~~ 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 ~~Incremental Term Loans made pursuant thereto shall constitute part of~~other Loan Documents, ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (i) ~~the~~ if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term ~~Loans to be made pursuant to~~ Loan having the terms of such ~~Incremental Amendment shall have the same Borrower, the same Maturity Date~~ Extended Term Loan and ~~the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;~~ (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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~2.21), ~~such new Incremental~~ (i) the aggregate amount of Extended Term Loans ~~shall~~ and Extended Revolving Facility Commitments will not be ~~added to (and form part of) each Borrowing of outstanding Term Loans~~ included in the calculation of the ~~applicable Tranche on a pro rata basis~~ Incremental Amount, (~~based on the relative sizes of the various outstanding Borrowings)~~ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ any Extending Lender may extend all or any portion of its Term Loans ~~add such Incremental~~ 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 Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLoan and/or Extended Revolving Facility Commitment), ~~which irregular interest periods~~ (iv) there shall be ~~permitted notwithstanding anything~~ no condition to ~~the contrary in this Agreement. All determinations by~~ 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 ~~LIBO Rate, in such circumstances pursuant to~~ terms of 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 Extended Term Loan ~~may be established~~ or Extended Revolving Facility Commitment implemented thereby 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 (v) all Extended 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.Extended Revolving Facility Commitments

Appears in 1 contract

Sources: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth herein) to provide an increase in Revolving Loan Commitments (a “Revolving Commitment Increase”~~), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”~~) or and/or Incremental Term Loan Commitments (such ~~Term Loans~~ term loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans~~” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities~~”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental ~~Amendment~~Agreement, ~~provide commitments and/or~~ make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide a Revolving Commitment Increase or an Incremental ~~Facility~~ Term Loan Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide a Revolving Commitment Increase or an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide a Revolving Commitment Increase or an Incremental ~~Facility~~ Term Loan Commitment without the consent of any other ~~Lender~~Lender (provided that the Administrative Agent, Swingline Lender and Issuing Lenders shall have consented (not to be unreasonably withheld or delayed) to any such Person providing a Revolving Commitment Increase if such consent would be required for an assignment of Revolving Loans to such Person under Section 13.04), (iii) each Revolving Commitment Increase and Tranche of Incremental ~~Facility~~ Term Loan Commitments shall be denominated in ~~Dollars or an Alternative Currency~~U.S. Dollars, (iv) the amount of any Revolving Commitment Increase and Incremental ~~Facility~~ Term Loan Commitment made available pursuant to a given Incremental ~~Amendment~~ Agreement shall be in a minimum aggregate amount for all Lenders which provide ~~such~~ a Revolving Commitment Increase or Incremental ~~Facility~~ Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $~~10,000,000~~15,000,000, (v) the aggregate ~~principal~~ amount of ~~any~~ all Revolving Commitment Increases and Incremental Term Loan ~~or Commitment, as applicable,~~ Commitments provided pursuant to ~~an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken~~ this Section 2.15 (together with ~~any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt~~ amounts incurred pursuant to Section ~~10.04(xxvii)(1) on such date~~10.04(xvi)), ~~(x)~~ in each case after the ~~then-remaining Fixed~~ Closing Date, shall not exceed the 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, Amount; (vi) the proceeds of all Revolving Commitment Increases and Incremental ~~Facilities~~ Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) ~~Borrower~~ each Incremental Agreement shall specifically designate, ~~in consultation~~ with the approval of the Administrative Agent, ~~any~~ the Tranche of the Incremental ~~Term Loan~~ Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental ~~Term Loan~~ Commitments or other ~~Term~~ Loans), ~~unless~~ unless, in the case of Incremental Term Loans or Incremental Term Loan Commitments, the requirements of Section 2.15(c) are satisfied~~), which designation shall be set forth in the applicable Incremental Amendment~~, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental ~~Amendment~~Agreement, 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the Initial Term Loans and the other Tranches of Incremental Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of ~~any such~~ certain prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long ~~as,~~ as such Tranche of Incremental Term Loans shall have (a) a an Initial Incremental Term Loan Maturity Date of no earlier than the ~~Term Loans~~ then Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, with the Effective Yield applicable thereto to be specified in the respective Incremental ~~Amendment~~Agreement; provided, however, ~~that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars,~~ that if the Effective Yield for ~~any~~ such Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, any such Initial Term Loans shall become subject to a determination of a new Applicable Increased Term Loan Spread and the Applicable Margins for ~~such~~ all then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”,” (III) ~~so that the difference between the Effective Yield~~ Incremental Term Loans may share on a pro rata basis or a less than pro rata basis (but not greater than pro rata basis) in any mandatory prepayments of Term Loans (other than pursuant to a refinancing of such Term Loans or with respect to ~~such new Incremental~~ greater than pro rata payments to an earlier maturing Tranche of Term ~~Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”);~~ Loans) and (~~III~~IV) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (IIIII)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term ~~Loans, in each case, taken~~ Loans and such other differences as ~~a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise~~ may be 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,~~ Loan 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[reserved], (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 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 the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each 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,~~ (~~xiii~~xii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental ~~Amendment~~ Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make ~~Incremental~~ Revolving ~~Loans~~ Commitment Increases 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~~ the applicable Incremental ~~Amendment (with respect to Incremental Revolving Loans)~~ Agreement and such Term 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~~Documents. (b) At the time of the provision of Incremental Commitments pursuant to this Section ~~2.15~~2.14, the 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 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 joinder agreement (each such agreement, an “Incremental ~~Amendment (which shall not require the consent of any other Lender~~Agreement”), 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~~ Agreement 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~~Agent), (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~~Agreement, 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 the extent requested by any Incremental Lender, ~~Term~~ Notes ~~or Revolving Notes, as applicable,~~ will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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~~2.14, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental ~~Amendment~~ Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this ~~Agreement;~~ Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., A-1, A-2, B-1, B-2, C-1, C-2, etc.)), provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental ~~Amendment~~ Agreement 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~~ Agreement 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~~ dates as then remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term ~~Loans pursuant to Section 2.01(b)~~Loans) 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 Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having ~~irregular~~ short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then outstanding Borrowings of Term Loans of such Tranche which ~~irregular interest periods~~ are maintained as LIBO Rate Loans, the Lenders that have made such Incremental Term Loans shall be ~~permitted notwithstanding anything~~ entitled to receive from the ~~contrary in this Agreement~~Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any ~~the Administrative Agent of the LIBO Rate, in such circumstances~~ Lender 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 (OCI Partners LP)

Appears in 1 contract

Sources: Credit Agreement (NRT Settlement Services of Missouri LLC)

Incremental Commitments. (a1) ~~Borrower~~ The Borrowers may at any time ~~and~~ or from time to time after the Effective Date, by notice to the Administrative Agent (an “Incremental Commitment Request”), request one or more ~~Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase~~ increases in ~~Revolving Commitments~~ the amount of the Aggregate Commitment (a “~~Revolving~~ Commitment Increase”~~), one or more additional Tranches of Revolving Commitments~~ ) under the Credit Facility (~~an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (~~any such ~~Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~new Commitments, the “Incremental ~~Term Loans” and~~Commitments”), ~~collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively,~~ whereupon the ~~“Incremental Facilities”~~Administrative Agent shall promptly deliver a copy to each of the Lenders. (2) 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 On 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 on which 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 Incremental Commitments ~~that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to~~ are effected through the establishment of ~~such Revolving~~ any 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 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 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, (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~~ terms and conditions ~~set forth~~ in this ~~Agreement~~Section 2.12, (i) each Incremental Lender shall make its new Commitment available rateably to the Borrowers in an amount equal to its Incremental ~~Revolving Loans and/or~~ Commitment and (ii) each Incremental ~~Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (~~Lender shall become a Lender hereunder with respect to the 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 Commitment and the ~~other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied~~Accommodations made pursuant thereto. (b3) At Each Incremental Loan Request from the ~~time of the provision of Incremental Commitments~~ Borrowers pursuant to this Section ~~2.15~~2.12 shall set forth the requested amount of the relevant Incremental Commitments. Incremental Commitments may be provided by any existing Lender (but no existing Lender will have an obligation to make any Incremental Commitment), ~~Borrower~~or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”, and each such existing Lender or Additional Lender, the “Incremental Lenders”); provided that the Administrative Agent and ~~each~~ the Swing Line Lender shall have consented (such ~~Lender (with the~~ consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender (~~not to be unreasonably withheld or delayed) to such Lender or Additional Lender providing such Commitment Increases to the extent such consent, if any, would be required under Section ~~13.04(b~~17.01(2) for an assignment of ~~Loans~~ Commitments or Accommodations Outstanding, as applicable, to such ~~Person~~Lender or Additional Lender. (4) The terms of such Incremental Commitments shall be identical to the Commitments. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: (a) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments; (b) each Incremental Commitment shall be in an aggregate principal amount that is not less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, and shall be in an increment of Cdn. $1,000,000 or U.S. $1,000,000, as applicable (provided that such amount may be less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.12(4)); (c) the aggregate amount of the Incremental Commitments shall not exceed Cdn. $75,000,000; (d) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates substantially consistent with those delivered on the First ARCA Closing Date and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that such incremental Debt is provided with the benefit of the applicable Credit Documents; and (e) such other ~~Eligible Transferee which agrees to provide~~ conditions as the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. (5) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (~~each,~~ an “Incremental ~~Lender~~Amendment”) ~~shall execute~~ to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrowers, the other Loan Parties, each Incremental Lender providing such Commitments and ~~deliver~~ the Administrative Agent. The Incremental Amendment may 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 ~~an Incremental Amendment (which shall not require~~ and the Borrowers, to effect the provisions of this Section 2.12(5), without the consent of any Lender or any other ~~Lender)~~Loan Party. (6) Upon any Incremental Facility Closing Date on which Incremental Commitments are effected, ~~with~~ (a) each of the ~~effectiveness~~ existing Lenders shall assign to each of the Incremental ~~Commitment provided therein to occur~~ Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the Accommodations Outstanding 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 Facility Closing Date 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~~ necessary in order that, after giving effect to ~~reflect the revised Incremental Commitments of the affected~~ all such assignments and purchases, such Accommodations will be held by existing Lenders and ~~(ii) to the extent requested by any~~ Incremental ~~Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ Lenders ratably in ~~conformity~~ accordance with ~~the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental~~ their 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the ~~incurrence~~ addition of such ~~new~~ Incremental ~~Term Loans pursuant to Section 2.01(b)~~Commitments, (b) on each Incremental Commitment shall be deemed for all purposes a ~~pro rata basis. To the extent the provisions of the preceding clause~~ Commitment and each Accommodation made thereunder shall be deemed, for all purposes, an Accommodation and (~~iii~~c) ~~require that~~ each Incremental ~~Lenders making new Incremental Term Loans add such Incremental Term Loans~~ Lender shall become a Lender with respect to the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged~~ Incremental Commitments and all matters relating thereto. The parties hereto hereby agree that the ~~effect thereof may result~~ minimum borrowing and repayment requirements 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 Rate Loans~~ Article 3 of ~~such Tranche and which will end on the last day of such Interest Period), which irregular interest periods~~ this Agreement shall ~~be permitted notwithstanding anything~~ not apply to the ~~contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances~~ transactions effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (Vail Resorts Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (i) one or more ~~Lenders~~ new term loan commitments (~~or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a~~ the “~~Revolving Commitment Increase~~New Term Loan Commitments”), (ii) one or more additional ~~Tranches~~ tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “~~Additional/Replacement~~ Revolving ~~Commitment”) or Incremental~~ Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. (b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Term B-1 Loans, the Revolving Credit Commitments and the Revolving Credit Loans ~~incurred in connection therewith~~and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to ~~Borrower~~ this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and ~~conditions contained in this Agreement and in~~ provisions that differ from Term Loans outstanding on the ~~relevant Incremental Amendment, provide commitments and/or make~~ date on which such New Term Loans ~~pursuant thereto; it being understood and agreed, however, that (i) no Lender~~ are made shall be ~~obligated to provide an Incremental Facility~~ designated as a ~~result~~ separate Class of ~~any such request by Borrower~~Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, ~~(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~~Lenders, 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 and the Borrower, to effect the provisions of this Section 2.17. (c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) ~~each Incremental Facility~~ if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be ~~denominated in Dollars or an Alternative Currency~~increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the ~~amount~~ same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments 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 $10,000,000Class are effective, (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~~foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. (d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments and the Revolving Credit Commitments) prior to, the then-~~Based Incremental Facility Test~~existing Latest Maturity Date with respect to anythe latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to anythe latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any ~~Incurrence-Based Incremental Amount~~ related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be ~~incurred thereunder on~~ implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or 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 other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt any ~~Tranche~~ “MFN” protection applicable to such Additional Revolving Credit Commitments. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental ~~Term Loan Commitments being provided thereunder (which Tranche shall~~ Amendment, are to be ~~a new Tranche (i.e., not~~ of the same ~~as any existing Tranche~~ Class of ~~Incremental~~ an Existing Class of Term Loans, ~~Incremental~~ when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan ~~Commitments~~ is made, or ~~other~~ by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans), ~~unless~~ then the ~~requirements of Section 2.15(c) are satisfied), which designation~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (~~viii~~i) if to ~~be incurred as a new Tranche of Incremental~~ the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such ~~Incremental~~ New Term Loans shall ~~have~~ be ratably increased by the ~~same terms as each other Tranche~~ aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect ~~immediately~~ to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the ~~relevant Incremental Amendment~~proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), ~~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 each new Tranche of Incremental Term Loans~~ shall be ~~entitled to share in mandatory prepayments~~ accompanied by accrued interest on ~~a ratable basis with~~ the ~~other Tranches of Term~~ Revolving Credit Loans ~~(unless the holders of the Incremental Term Loans of~~ being prepaid and any ~~Tranche agree to take a lesser share of~~ costs incurred by 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (Lender 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~promptly notify each Lender as~~ not apply 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding ~~sentence shall~~sentence. This Section 2.17 shall supersede any provisions in Section 5.2, ~~absent manifest error, be final and conclusive and binding on all parties hereto. (d~~13.1 or 13.8(a) 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 Loanscontrary.

Appears in 1 contract

Sources: Credit Agreement (WideOpenWest Finance, LLC)

Appears in 1 contract

Sources: Credit Agreement (WideOpenWest Finance, LLC)

Incremental Commitments. (a) ~~Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ Each Incremental Lender that is an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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, Increasing Lender hereby agrees that (i) ~~no Lender shall~~ its Revolver Commitment will be ~~obligated to provide an~~ increased by the amount of its Incremental ~~Facility~~ Commitment set forth on Annex B attached hereto effective as ~~a result~~ of ~~any such request by Borrower~~the Amendment Effective Date (as defined below), (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ increase, its total Revolver Commitment ~~Increases,~~ will be the ~~Pro Rata Percentage~~ amount 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~~its “Total Revolver Commitment” set forth on Annex B attached hereto, and (Eiii) ~~the Revolving Commitment Increase~~ it 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 continue to be a Lender 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 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 Amended Credit ~~Documents and shall be secured by the 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, (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 Each Incremental Lender that is an Additional Lender hereby agrees (i) to become a Lender under the ~~time~~ Amended Credit Agreement effective as of the ~~provision~~ Amendment Effective Date with a Revolver Commitment equal to its Incremental Commitment set forth on Annex B attached hereto and (ii) that it shall be a party in all respects to, and bound as a Lender in all respects by, the Amended Credit Agreement and the other Loan Documents. (c) On the Amendment Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Pro Rata Share after giving effect to the addition of such Incremental Commitments ~~pursuant~~ to ~~this Section 2.15~~the Revolver Commitments, ~~Borrower~~(ii) each Incremental Commitment shall be deemed, ~~the Administrative Agent~~ for all purposes, a Revolver Commitment and each ~~such~~ loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Lender shall become a Lender with respect to its Revolver Commitment and all matters relating thereto. (d) Each Incremental Lender (~~with the consent~~ i) confirms that it has received a copy of the ~~Administrative Agent, each Issuing Bank~~ Amended Credit Agreement and the ~~Swingline~~ other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment, (ii) agrees that it will, independently and without reliance upon Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement, (~~not~~ iii) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be ~~unreasonably withheld or delayed~~performed by it as a Lender, (v) confirms that it is an Eligible Transferee, and (vi) to the extent it is an Additional Lender, (A) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and (B) certifies that it has delivered to the Par Borrower the forms prescribed by the Internal Revenue Service of the United States certifying as to its status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to it under the Amended Credit Agreement or such ~~consent~~other documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty. (e) Each Lender party hereto (including, ~~if any~~for the avoidance of doubt, ~~would~~ each undersigned Lender that is not an Incremental Lender) hereby agrees that the Borrower shall not be required to make any Funding Losses payments to such Lender which may otherwise be required under Section ~~13.04(b~~2.12(b)(ii) 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~~ Credit Agreement solely resulting from the increase in the Revolver Commitments effected pursuant to ~~occur on the date on which (w) a fully executed copy~~ this Amendment; provided, that each Lender’s waiver 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 Funding Losses payments 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~~1.1(e) is a limited, one-time waiver, and ~~at such time~~nothing contained herein shall obligate Agent or any Lender to grant any additional or future waiver with respect to, ~~(i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments~~ or in connection with, any provision of the ~~affected Lenders and (ii) to the extent requested by~~ Amended Credit Agreement or any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother Loan Document. (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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)

Incremental Commitments. (a) Prior to the Commitment Termination Date, Borrower ~~may at any time and from time~~ may, by written notice to ~~time~~ the Facility Agent, request ~~one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ an increase ~~in Revolving~~ to the existing Commitments (a any such increase, any “~~Revolving Commitment Increase~~Incremental Commitment”)~~, one or more additional Tranches of Revolving Commitments~~ . (~~an “Additional/Replacement Revolving Commitment”~~b) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject No increase to the ~~terms~~ existing Commitments shall occur, 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~~ Person may 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, ~~taken~~ without the prior written consent of the Facility Agent and each Lender, which consent shall be in the sole discretion of the Facility Agent and the Lenders (each approved Person, if any, an “Incremental Lender”). (c) No Lender or any other Person shall have any obligation to provide any or all of the Incremental Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment. (d) Each Incremental Commitment shall become effective as ~~a whole~~of the date agreed to among Borrower, ~~that are not materially more favorable to~~ the ~~lenders providing~~ Facility Agent and the applicable Incremental Lenders (the “Incremental Increase Date”), so long as (i) no Event of Default shall exist on such Incremental ~~Term Loans than the provisions applicable to the existing Term Loans~~ Increase Date before 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 Incremental Commitments; (Eii) 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 Incremental Commitments shall ~~have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans~~be effected pursuant to one or more joinder agreements, (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 in form and substance satisfactory to the ~~Administrative Agent~~Facility Agent and the Lenders, ~~(xii) all Incremental Term Loans~~ and ~~Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower~~ each of which shall be ~~Obligations of Borrower under this Agreement and~~ recorded in the ~~other applicable Credit Documents~~ Register and shall be ~~secured~~ subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the ~~Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis~~ Facility Agent in connection with ~~all other Loans secured by the Security Agreement and guaranteed under~~ any such ~~Guaranty Agreement and shall not be secured by~~ transaction. (e) On any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental ~~Commitment pursuant to an Incremental Amendment shall~~Increase Date, 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) foregoing terms 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 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 timeconditions, (i) ~~Schedule 2.01~~ each Lender having an existing Commitment shall assign to each of the Incremental Lenders having a Commitment, and each such Incremental Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by such Lenders having existing Commitments and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be deemed ~~modified to reflect the revised~~ for all purposes a Commitment and each Advance made thereunder (an “Incremental ~~Commitments of the affected Lenders~~ Advance”) shall be deemed, for all purposes, an Advance and (iiiii) each Incremental Lender shall become a Lender with respect to the ~~extent requested by any~~ Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans Commitment and ~~Incremental Commitments made by such Incremental Lender~~all matters relating thereto. (cf) ~~Notwithstanding anything to~~ The Facility Agent shall notify 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~~promptly upon determination of any Incremental Increase Date, ~~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~~ Commitments and the ~~same Applicable Margins as the Tranche of Term Loans to which the new~~ Incremental ~~Term Loans are being added;~~ Lenders, and (ii) in the ~~new Incremental Term Loans shall have~~ case of each notice to any Lender having Exposure, the ~~same Scheduled Repayment Dates as then remain with respect~~ respective interests in such Lender’s Advances, in each case subject 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); andassignments contemplated by this Section 2.14. (~~iii~~g) ~~on the date of the making of such new Incremental Term Loans,~~ The terms and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ Advances shall be identical to the then outstanding Borrowings of LIBO Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAdvances. (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: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender or any other person selected by the Borrower which becomes a Lender by signing an Incremental Assumption Agreement (it being understood that no existing Lender will be under any obligation to provide any Incremental Term Loan Commitment or Incremental Revolving Facility on Commitment)) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date of the incurrence thereof~~ case may be, in their own discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $10,000,000 and a ~~new Tranche~~ minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans), unless the requirements of Section 2.15(c)~~ and/or Incremental Revolving Facility Commitments are ~~satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if~~ requested to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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% become effective (the “~~MFN Pricing Test~~Increased Amount Date”); 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 (Eiii) 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 Revolving ~~Commitment Increase shall rank pari passu in right of payment and security with the Initial~~ Facility Loans (“Other 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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 have ~~been delivered~~ (x) substantially identical terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Revolving Facility Maturity Date, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Revolving Facility Loans, (iv) except as to pricing, amortization and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) ~~all fees required to~~ the same terms as the Revolving Facility or (y) such other terms as shall 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~~ 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 Loans in the initial primary syndication thereof) in respect of any Other Revolving Loans or Incremental Term Loans shall be the same as that applicable to the ~~extent~~ Revolving Facility Loans; except that the interest rate margin in respect of any Other Revolving Loans or Incremental Term Loans (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 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 Loans or Incremental Term Loans in the initial primary syndication thereof), respectively, by no more than ¼ of 1% (it ~~served~~ 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 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 ~~arranger~~ 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 ~~Incremental Commitments~~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)~~, (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~~Assumption Agreement. Each of the parties hereto hereby agrees that, ~~and at such time~~upon the effectiveness of any Incremental Assumption Agreement, ~~(i) Schedule 2.01~~ this Agreement shall be ~~deemed modified~~ amended to the extent (but only to the extent) necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ Incremental 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 ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders, as the case may be, pursuant to each Incremental Amendment~~ Revolving Facility Commitment shall ~~constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to~~ become effective under 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: Section 2.22 unless (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 remain 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 (iii) on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the ~~making of~~ Borrower shall be in Pro Forma Compliance after giving effect to such ~~new~~ 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. (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 Revolving Loans), ~~and notwithstanding anything to the contrary set forth~~ when originally made, are included in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of)~~ each Borrowing of outstanding ~~Term~~ Revolving Facility Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.17 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Cke Restaurants Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to exceed the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender, but no existing Lender will have an obligation to make any Incremental Term Loan Commitments and/or Incremental Revolving Facility on Commitments) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date~~ case may be, in their own discretion; provided that in the case of Incremental Revolving Commitments either, at the election 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 dateBorrower, (xi) ~~the then-remaining Fixed~~ each Incremental ~~Amount as of the date of incurrence plus (y)~~ Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such Incremental Revolving Facility ~~Test~~Lender) or (ii) the Letter of Credit Commitment may not be allocated under, ~~any Incurrence-Based Incremental Amount that~~ and no Letters of Credit may be ~~incurred thereunder on~~ requested by the Borrower under, such ~~date,~~ Incremental Revolving Facility Commitments. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5.0 million and a ~~new Tranche~~ minimum amount of $20.0 million or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless the requirements of Section 2.15(c~~(iii) ~~are satisfied), which designation shall be set forth~~ in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to any Term Loans ~~shall have~~ 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 case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ 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 ~~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~~ “Other 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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 not require~~ shall, subject to clause (ii) through (iii) of this proviso, be determined by the ~~consent of any other Lender~~Borrower and the Incremental Term Lenders in their sole discretion), ~~with the effectiveness of~~ the Incremental ~~Commitment provided therein to occur on the date on which~~ 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 ~~fully executed copy~~ 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 ~~Incremental Amendment~~ other terms as shall ~~have been delivered~~ be reasonably satisfactory to the Administrative Agent, (ii) the Incremental Term 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 Incremental Term Loans rank junior in right of security with the Initial Revolving Loans, such Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the 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 Initial Revolving Loans), (iii) the final maturity date of any Incremental Term Loans shall be no earlier than the 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 (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 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 Weighted Average Life to Maturity of the Initial Revolving Facility in effect on the date of incurrence of 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 to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (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, applicable to the Initial Revolving Loans (as determined in good faith by the Borrower), (x) ~~all fees required~~ 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 ~~be paid in connection therewith~~ the Administrative Agent, (vi) the Other Revolving Loans shall rank pari passu or, at the ~~time~~ 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) (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 have any scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Facility Maturity Date, (viii) [reserved], (ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party; (x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and (xi) 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 ~~have been paid~~ 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 ~~agreed upon upfront~~ amendment to Section 2.10(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 ~~arrangement fees owing~~ 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 ~~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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (A) to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (~~not to be unreasonably withheld~~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, ~~delayed or conditioned~~no Event of Default under Section 7.01(b), ~~the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of~~(c), ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (ih) 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 remain~~ with respect to the ~~Tranche~~ Borrower) or (i) (with respect to ~~which such new~~ the Borrower) shall have occurred and be continuing or would result therefrom. (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 ~~are being added~~ (~~with the amount of each Scheduled Repayment applicable to such new~~ other than Incremental Term Loans ~~to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental~~ having terms different from any Term Loans then in effect), when originally made, are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth included in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of)~~ each Borrowing of the outstanding applicable Class of Term Loans ~~of the applicable Tranche~~ on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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”) ~~and~~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 ~~amount of any Incremental~~ Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans ~~does~~ shall have (w) terms substantially similar to, or 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 materially less favorable to the ~~establishment~~ Borrower and ~~incurrence of such Incremental Term Loans.~~its Subsidiaries than, the terms and conditions, taken as a

Appears in 1 contract

Sources: Credit Agreement (Caesars Entertainment, Inc.)

Incremental Commitments. (a) Any Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, request Incremental Term Commitments and/or Incremental Revolving Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing Lender or ~~one or more Eligible Transferees who will become Lenders~~any Person not theretofore a Lender) willing to provide ~~an increase~~ such Incremental Term Loans and/or Incremental Revolving Loans, as the case may be, in their own discretion, provided that each Incremental Term Lender and/or Incremental Revolving ~~Commitments (a “Revolving Commitment Increase”), one or more additional Tranches~~ Lender shall be subject to the approval of ~~Revolving Commitments (an “Additional/Replacement Revolving Commitment”)~~ the US Borrower and the Administrative Agent to the extent that such approval would be required under Section 9.04 if the applicable Incremental Term Lender or Incremental Revolving Lender were the proposed assignee of a Term ~~Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving~~ Commitment ~~Increase and any Additional/Replacement~~ or Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 respectively (which approvals shall not be unreasonably withheld). Such notice shall set forth (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~~ the Incremental ~~Facility made available pursuant to a given~~ Term Commitments and/or Incremental ~~Amendment~~ Revolving Commitments being requested (which shall be in minimum increments of US$25,000,000 and a minimum ~~aggregate~~ amount ~~for all Lenders which provide such~~ of US$25,000,000 or equal to the remaining Incremental ~~Facility thereunder~~ Amount) and (~~including Eligible Transferees who will become Lenders) of at least $10,000,000, (v~~ii) the ~~aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility~~ date 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term ~~Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior~~ Commitments and/or Incremental Revolving Commitments are requested to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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% become effective (the “~~MFN Pricing Test~~Increased Amount Date”); 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ Each Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender and the security and Guarantees therefor (the “Incremental Documents”). Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Loans to be made thereunder, provided that (i) the Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or junior in right of payment and of security with the Term Loans, and Revolving Loans and (except as to pricing and amortization) shall have the same terms as the Term Loans or Revolving Loans, as applicable, (ii) the maturity date of any Incremental Term Loans or Incremental Revolving Loans shall be no earlier than the date that is six months after the Term Maturity Date, (iii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans as of the date of the applicable Incremental Assumption Agreement and (iv) no interest rate margin (which shall ~~not require the consent~~ be deemed to include all upfront or similar fees or original issue discounts payable to all Incremental Term Lenders providing such Incremental Term Loans) in respect of any ~~other Lender~~Incremental Term Loan may exceed any Applicable Rate applicable to the Term Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discounts payable to all Term Lenders providing Term Loans) by more than 0.25% (it being understood that any such increase may take the form of original issue discount, with original issue discount being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), ~~with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy~~ without increasing such Applicable Rate so that no interest rate margin in respect of such Incremental ~~Amendment~~ Term Loans (which shall ~~have been delivered~~ be deemed to include all upfront or similar fees or original issue discount payable to all Incremental Term Lenders providing such Incremental Term Loans), is more than 0.25% higher than any Applicable Rate applicable to the ~~Administrative Agent~~Term Loans (which shall, ~~(x)~~ for such purposes only, be deemed to include 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~~ similar fees ~~owing~~ or original issue discount payable to all Term Lenders providing the ~~Administrative Agent to the extent it served as the arranger for the Incremental Commitments~~Term Loans)~~, (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~~Assumption Agreement. Each of the parties hereto hereby agrees that, ~~and at such time~~upon the effectiveness of any Incremental Assumption Agreement, ~~(i) Schedule 2.01~~ this Agreement shall be ~~deemed modified~~ amended to the extent (but only to the extent) necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ Incremental Term Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.04(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Term Commitment or Incremental Revolving Commitment shall become effective under 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: 2.21 unless (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 remain 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 (iii) on the date of such effectiveness, the ~~making of such new Incremental Term Loans, and notwithstanding anything to the contrary~~ conditions set forth in paragraphs (a) and (b) of Section ~~2.09~~4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer, (ii) the Administrative Agent shall have received the applicable Incremental Documents and all legal opinions and other documents related thereto and (iii) immediately before and after giving pro forma effect to such ~~new~~ Incremental Term Commitment and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of the proceeds therefrom, no Default shall have occurred and be continuing (including any Default under Section 6.13, 6.14, 6.15 or 6.16). (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 ~~shall be added to (and form part of)~~ and/or Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Term Loans ~~of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term~~ or Revolving Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis~~. To~~ , and the ~~extent the provisions~~ Borrowers agree that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ Eurocurrency Loans to ~~the then outstanding Borrowings of LIBO~~ ABR Loans or Canadian Base Rate 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (CCE Spinco, Inc.)

Incremental Commitments. (a) No later than the date that is 180 days after the Amendment No. 1 Effective Date, the Borrower may ~~at any time and from time~~ request additional Commitments in an aggregate principal amount of up to ~~time request one or more Lenders~~ $30,000,000 (~~or one or more Eligible Transferees who will become Lenders~~each such additional Commitment, an “Incremental Commitment”) ~~to provide an increase in Revolving Commitments~~ by either (~~a “Revolving Commitment Increase”),~~ i) incorporating one or more additional ~~Tranches~~ lenders acceptable to the Borrower and the Majority Lenders, or (ii) agreeing with any existing Lenders an increase of ~~Revolving~~ its respective Commitments (each such existing Lender or other Person that agrees to provide an ~~“Additional/Replacement Revolving~~ Incremental Commitment~~”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each~~, an “Incremental ~~Term Loan” and, collectively~~Lender”); provided that, the “Borrower shall make no more than a total of three requests in the aggregate for an Incremental ~~Term Loans” and, collectively with any Revolving~~ Commitment ~~Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject~~ under this Section. Notwithstanding anything herein to the ~~terms and conditions contained in this Agreement and in the relevant Incremental Amendment~~contrary, ~~provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ (ix) no Lender shall ~~be obligated~~ have any obligation 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to this Section and any election to do so shall be in the sole discretion of such Lender, and (y) after giving effect to all Incremental Commitments, the sum of the unutilized Commitments plus the aggregate outstanding principal amount of Loans shall not exceed $800,000,000. (b) In order to effect such Incremental Commitment, the Borrower, the applicable Incremental Lender and the Administrative Agent (on behalf of the Lenders) (but no other Lenders or Persons) shall enter into one or more joinder agreements, each substantially in the form attached hereto as Exhibit H, pursuant to which the applicable Incremental Lender will provide the applicable Incremental Commitments (each such joinder agreement, an “Incremental ~~Amendment shall~~Joinder Agreement”). (c) The obligations of any Incremental Lender under its Incremental Joinder Agreement and this Agreement, and the effectiveness of the related Incremental Commitment, shall be subject to the satisfaction of the ~~relevant~~ Incremental Lenders or waiver thereof by each Incremental Lender of each of the following conditions precedent and the conditions set forth in ~~this Agreement~~the relevant Incremental Joinder Agreements (the date that each such conditions are satisfied or waived, ~~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 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 LenderEffective Date”) 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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: Revolving Credit Agreement (Mercadolibre Inc)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans,~~ incurrence); (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Term B-4 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding ~~Initial~~ Term B-4 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-4 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the ~~Initial~~ 2023 Revolving Loans and the ~~Closing Date~~ 2023 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~~ 2023 Revolving ~~Loans (~~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~~ 2023 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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ Rate applicable to the ~~Initial~~ 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the ~~Initial~~ 2023 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the ~~Initial~~ 2023 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/~~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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section ~~2.09~~2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate~~ 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 Rate~~ 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 ~~any~~ the Administrative Agent of the ~~LIBO Rate,~~ Adjusted 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 (Iridium Communications Inc.)

Incremental Commitments. (a) The Company (for and on behalf of itself, or in its capacity as Borrower ~~may at~~ Representative on behalf of any ~~time and~~ other Borrower, as applicable) may, by written notice to the Agent from time to ~~time~~ time, request Incremental Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (~~or one or more Eligible Transferees who will become Lenders~~which may include any existing Lender) willing to provide ~~an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ such Incremental Term ~~Loan Commitments (such Term Loans incurred~~ Advances and/or Incremental Revolving Credit Advances, as the case may be, in ~~connection therewith~~their sole discretion; provided, ~~each, an “~~that each Incremental Term ~~Loan” and, collectively, the “~~Lender and/or Incremental ~~Term Loans” and, collectively with any~~ Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each,~~ Lender (which is not an ~~“Incremental Facility” and collectively, the “Incremental Facilities”~~existing Lender) ~~to Borrower and,~~ shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (B) the date on which such Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”) and (C) (i) whether such Incremental Term Commitments are to be commitments to make term advances with pricing and/or amortization terms different from the then-outstanding Term Advances (“Other Term Advances”) and/or (ii) whether such Incremental 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”). (b) The applicable Borrower and such other Loan Parties as may be required with respect to such Incremental Term Commitment or Incremental Revolving Credit Commitment and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Agent an 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 Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request. Each 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 ~~contained in this Agreement~~ agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the ~~relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto~~Agent; ~~it being understood and agreed, however~~provided, 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 Other Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) Advances and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Other 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 Advances shall rank pari passu in right of payment and of security with the ~~Initial~~ Term Advances and Revolving ~~Loans~~Credit Advances, as applicable, (xii) 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 final maturity date of (A) any Other Term Advances shall be no earlier than the ~~then latest maturing Tranche of outstanding Revolving Loans,~~ Latest Scheduled Term Loan Termination Date and (xiB) any ~~Tranche of the Additional/Replacement~~ Other 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 Credit Advances shall be no earlier than the ~~provisions~~ scheduled Termination Date applicable to the ~~existing~~ Revolving ~~Commitments or as are otherwise reasonably satisfactory~~ Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Term Advances shall be no shorter than the longest remaining weighted average life to maturity of any Term Facility outstanding immediately prior to the ~~Administrative Agent, (xii) all Incremental Term Loans~~ execution 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 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, (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 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 delivery of such Incremental ~~Amendment~~ Assumption Agreement, (iv) the Other Revolving Credit Advances shall 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 (v) no Default (except in the connection with a Limited Condition Acquisition, in which case this requirement shall be that no Specified Event of Default shall have ~~been delivered to the Administrative Agent, (x~~occurred and be continuing or would result from such Incremental Term Advance and/or Incremental Revolving Credit Advance) ~~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~~ occurred and be continuing 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to would result from such Incremental ~~Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new~~ Term Advances and/or Incremental ~~Loans and Incremental Commitments made by such Incremental Lender~~Revolving Credit Advances. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Term Commitment or Incremental Revolving Credit Commitment shall become effective under 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: 2.04 unless (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 remain 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 (iii) on the date of such effectiveness, the ~~making of such new Incremental Term Loans,~~ representations and ~~notwithstanding anything to the contrary~~ warranties set forth in Section ~~2.09~~4.01 shall be true and correct (in the case of a Limited Condition Acquisition, to the extent required under Section 1.14) and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such ~~new~~ 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 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 76 Section 3.01 and such additional documents and filings (including amendments to the Collateral Documents) as the Agent may reasonably require to assure that the Incremental Term ~~Loans shall~~ Advances and/or Incremental Revolving Credit Advances are secured by the Collateral ratably with the existing Term Advances and Revolving Credit Advances, and (iii) subject to Section 1.14, the Borrowers would be ~~added~~ in 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 giving effect to such Incremental Term Commitment and/or Incremental Revolving Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and ~~form part of~~the Advances 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 Agent may take any and all action as may be reasonably necessary to ensure that 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 outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) Advances or Revolving Credit Advances 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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: Syndicated Facility Agreement (Sealed Air Corp/De)

Incremental Commitments. (a) ~~Borrower may~~ The Borrowers shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except the Issuing Lender as provided below), to request at any time and from time to time ~~request~~ after the Effective Date (or, if later, after the satisfaction of any condition previously agreed to among the Agents and the Borrowers) and prior to the Final Maturity Date that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders) to provide ~~an increase in Revolving~~ Incremental Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the applicable terms and conditions contained in this Agreement and in the relevant Incremental ~~Amendment~~Commitment Agreement, ~~provide commitments and/or~~ make Revolving Loans and participate in Letters of Credit and Swingline Loans pursuant thereto; ~~it being understood and agreed, however,~~ provided that (i) no Lender shall be obligated to provide an Incremental ~~Facility~~ Commitment, and until such time, if any, as ~~a result~~ such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent and the Borrowers an Incremental Commitment Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Commitment (if any) or participate in any Letters of Credit or Swingline Loans in excess of its R/L Percentage, in each case, as in effect prior to giving effect to such ~~request by Borrower~~Incremental Commitment provided pursuant to this Section 2.15, (ii) any Lender (including any Person which is an Eligible Transferee who will become a Lender) may so provide an Incremental ~~Facility~~ Commitment without the consent of the Administrative Agent or any other Lender; provided that any Person that is not a Lender prior to the effectiveness of its Incremental Commitment shall require the consent of the Administrative Agent, each Issuing Lender and the Swingline Lender (which consents shall not be unreasonably withheld) to provide an Incremental Commitment pursuant to this Section 2.15, (iii) ~~each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv)~~ the aggregate amount of ~~any~~ each request (and provision therefor) for Incremental ~~Facility made available pursuant to a given Incremental Amendment~~ Commitments shall be in a minimum aggregate amount for all Lenders which provide ~~such~~ an Incremental ~~Facility thereunder~~ Commitment pursuant to a given Incremental Commitment Agreement pursuant to this Section 2.15 (including Persons who are Eligible Transferees ~~who~~ and will become Lenders) of at least $~~10,000,000~~10,000,000 (or such lesser amount that is acceptable to the Administrative Agent), (iv) the aggregate amount of all Incremental Commitments permitted to be provided pursuant to this Section 2.15 shall not exceed in the aggregate $50,000,000, (v) the ~~aggregate principal amount of any Loan or Commitment, as applicable,~~ Borrowers shall not increase the Commitment 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 this 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 date2.15 more than 5 times, (vi) such Incremental Commitments shall be upon all of the ~~proceeds of all~~ same terms and conditions of, and shall have the same pricing and fees (other than upfront fees to the Incremental ~~Facilities incurred by Borrower may be used for any purpose not prohibited under~~ Lenders) as provided to the other Lenders under, this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ incurred pursuant to an Incremental 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 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 relevant Security ~~Agreement~~Documents, and guaranteed under ~~each relevant~~ the Guaranty, on a pari passu basis with all other Loans secured by ~~the~~ each relevant Security ~~Agreement~~ Document 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~~Guaranty, (~~xiii~~viii) each Lender (including any Person which is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental ~~Amendment~~ Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, participate in Swingline Loans and Letters of Credit pursuant to Sections 2.01(b) and 3.04, respectively, and 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~~2.01(a) and such Revolving Loans shall ~~thereafter be deemed to be Incremental~~ constitute 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~~ix) ~~all~~ no Default or Event of Default shall have occurred and be continuing. The Borrowers shall make reasonable efforts to afford existing Lenders the opportunity to provide such Incremental Commitment ~~Requirements are satisfied~~to the Borrowers. (b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (I) each Borrower, each Subsidiary Guarantor, the Administrative ~~Agent~~ Agent, the Swingline Lender and each Issuing Lender (if the consent of each are required pursuant to Section 2.15(a)(ii)) 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 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 Company and the Administrative Agent an Incremental ~~Amendment~~ Commitment Agreement, appropriately completed (~~which shall not require the consent of any other Lender),~~ with the effectiveness of the Incremental Commitment provided therein to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (~~w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x~~i) 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)~~paid, (yii) all Incremental Commitment Requirements ~~are~~ have been satisfied, ~~and~~ (ziii) all ~~other~~ conditions set forth in this Section 2.15 shall have been satisfied and (iv) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied) and (II) each Borrower, each Subsidiary Guarantor, the ABL Loan Collateral Agent and each Incremental Lender (as applicable) shall execute and deliver to the Administrative Agent and the ABL Loan Collateral Agent such additional Security Documents and/or amendments to the Security Documents which are necessary to ensure that all Loans incurred pursuant to the Incremental Commitments are secured by each relevant Security Document (the “Incremental Security Documents”) together with such legal opinions, closing certificates and other instruments, documents and agreements as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment~~Commitment Agreement and, ~~and~~ at such time, (iSchedule 1.01(a) ~~Schedule 2.01~~ shall be deemed modified to reflect the ~~revised~~ Incremental Commitments of ~~the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to~~ such Incremental Lender, to be in conformity with the 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 LenderLenders. (c) ~~Notwithstanding anything to the contrary contained above in this Section 2.15,~~ It is understood and agreed that 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 Commitment Agreement shall constitute part of, and be added to, ~~an existing Tranche~~ the Total Revolving Loan Commitment and each Incremental Lender shall constitute a Lender for all purposes of ~~Term Loans~~this Agreement and each other applicable Credit Document. (d) At the time of any provision of Incremental Commitments pursuant to this Section 2.15, each Borrower shall, in ~~any case so long as~~ coordination with the ~~following requirements are satisfied:~~ Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (i) including the Incremental ~~Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower~~Lenders), 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 remain with respect in each case 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 extent necessary so that all of the respective Tranche proportionately); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates Lenders participate in each outstanding Borrowing of ~~Term~~ Revolving Loans pro rata on the basis of ~~the~~ their respective ~~Tranche~~ Revolving Loan Commitments (after giving effect to any increase in the ~~incurrence of such new Incremental Term Loans~~ Total Revolving Loan Commitment 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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~~ with 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 Borrowers being obligated to pay 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 respective Lenders any ~~Incremental Term Loans does not exceed the sum of (x) the principal amount~~ costs of the ~~applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including~~ type referred to in Section 2.11 in connection with 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 Loansrepayment and/or Borrowing.

Appears in 1 contract

Sources: Abl Credit Agreement (Par Petroleum Corp/Co)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to time after the Escrow Release Date, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental Amount at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility on Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the ~~date of the incurrence thereof~~ case may be, in their own discretion. Such notice 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,~~ set forth (xi) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5.0 million and a ~~new Tranche~~ minimum amount of $10.0 million or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans~~and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ~~unless the requirements of Section 2.15(c~~(iii) ~~are satisfied), which designation shall be set forth~~ in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans ~~shall have~~ 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 Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ 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 ~~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~~ “Other 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; 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) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the 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 (provided, 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 ~~require~~ be subject to clause (viii) below), (iii) the ~~consent~~ final maturity date of any ~~other Lender~~Other Term Loans shall be no earlier than the latest Term B Facility Maturity Date in effect on the date of incurrence, (iv) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (v) except as to pricing, amortization, final maturity date and participation in mandatory prepayments (which shall, subject to clause (vi) and (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 (x) substantially the same terms as the Initial Revolving Loans or (y) such 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 Loan 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 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 (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 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, 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). 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 ~~provided therein to occur~~ or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date ~~on which (w) a fully executed copy~~ of such ~~Incremental Amendment~~ effectiveness, no Default or Event of Default shall have ~~been delivered~~ occurred and be continuing or would result therefrom or (ii) in the case of an Incremental Term Loan Commitment or Incremental Revolving Facility Commitment incurred in connection with a Permitted Business Acquisition or another Investment permitted hereunder, on the date of such effectiveness, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom. (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), 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 after the Escrow Release Date 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 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) ~~all fees required to~~ the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall 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~~ reasonably satisfactory to the Administrative ~~Agent~~ 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 ~~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 but only to the ~~effectiveness of each Incremental Amendment, and at such time, (i~~extent) ~~Schedule 2.01 shall be deemed modified~~ necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders and (ii) to the extent requested~~ 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 any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 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, ~~delayed~~ 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 ~~conditioned)~~upon or prior to the maturity date for any Class of Revolving Facility Commitments. (g) Upon the effectiveness of any such Extension, the ~~parties to a given Incremental Amendment may specify therein that~~ 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 ~~Incremental Term Loans made pursuant thereto shall constitute part of~~other Loan Documents, ~~and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ (i) ~~the~~ if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term ~~Loans to be made pursuant to~~ Loan having the terms of such ~~Incremental Amendment shall have the same Borrower, the same Maturity Date~~ Extended Term Loan and ~~the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;~~ (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 ~~new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which~~ terms of 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); andExtended Revolving Facility Commitment. (~~iii~~h) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section ~~2.09~~2.21), ~~such new Incremental~~ (i) the aggregate amount of Extended Term Loans ~~shall~~ and Extended Revolving Facility Commitments will not be ~~added to (and form part of) each Borrowing of outstanding Term Loans~~ included in the calculation of the ~~applicable Tranche on a pro rata basis~~ Incremental Amount, (~~based on the relative sizes of the various outstanding Borrowings)~~ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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~~ any Extending Lender may extend all or any portion of its Term Loans ~~add such Incremental~~ 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 Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLoan and/or Extended Revolving Facility Commitment), ~~which irregular interest periods~~ (iv) there shall be ~~permitted notwithstanding anything~~ no condition to ~~the contrary in this Agreement. All determinations by~~ 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 ~~LIBO Rate, in such circumstances pursuant to~~ terms of 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 Extended Term Loan ~~may be established~~ or Extended Revolving Facility Commitment implemented thereby 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 (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Loan Obligations 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~~ Loan Parties under this Agreement and the other Loan Documents that are ~~offered~~ secured by the ~~opportunity to participate in such transaction~~ Collateral on a ~~pro rata~~ pari passu 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: First Lien Credit Agreement (Caesars Acquisition Co)

Incremental Commitments. (a) The U.S. Borrower ~~may at any time and~~ or the Dutch Borrower may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount (unless constituting an Extension in accordance with clauses (e) through (i) of this Section 2.21) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans ~~incurred~~ and/or Incremental Revolving Facility Loans, as the case may be, in ~~connection therewith, each, an “~~their own discretion; provided that each Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and,~~ Facility Lender shall be subject to the ~~terms and conditions contained in this Agreement and in~~ approval of the ~~relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that~~ Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (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 and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $1.0 million and a ~~new Tranche~~ minimum amount of $25.0 million or equal to the remaining Incremental Amount), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments ~~or other Term Loans), unless~~ and/or Incremental Revolving Facility Commitments are requested to become effective (the ~~requirements of Section 2.15(c~~“Increased Amount Date”) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment,~~ and (~~viii~~iii) ~~if to be incurred as a new Tranche of Incremental Term Loans,~~ (a) whether such Incremental Term ~~Loans shall have the same~~ Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms ~~as each other Tranche~~ identical to an existing Class of Term Loans ~~as in effect immediately prior~~ or commitments to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis make term loans with ~~the other Tranches~~ pricing and/or amortization terms different from an existing Class of Term Loans (~~unless the holders of the Incremental~~ “Other Term ~~Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I~~Loans”) 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and and/or (b) ~~a Weighted Average Life~~ whether such Incremental Revolving Facility Commitments are to ~~Maturity of no less than~~ be 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 ~~Weighted Average Life to Maturity as then in effect for the~~ Canadian Tranche ~~of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided~~Revolving Facility Loans, ~~however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term~~ European Tranche Revolving Facility Loans and ~~the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term~~ U.S. Tranche Revolving Facility Loans (“Other Revolving Facility 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The U.S. Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided that (i) the Other Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Existing Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall have the same terms as the Existing Term Loans, (ii) the final maturity date of (a) any Other Term Loans shall be no earlier than the latest Term Facility Maturity Date of any then existing Term Loans and (b) 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 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 ~~not require the consent~~ 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 Lender~~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 ~~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~~ OID being equated to the ~~Administrative Agent, (x) all fees required to be paid~~ interest rates 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~~ 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 ~~extent it served~~ 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 ~~arranger~~ 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 ~~Incremental Commitments~~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)~~, (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~~Assumption Agreement. Each of the parties hereto hereby agrees that, ~~and at such time~~upon the effectiveness of any Incremental Assumption Agreement, ~~(i) Schedule 2.01~~ this Agreement shall be ~~deemed modified~~ amended to the extent (but only to the extent) necessary to reflect the ~~revised Incremental Commitments~~ existence and terms of the ~~affected Lenders~~ 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 ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ conditions set forth in paragraphs (b) and (c) of Article IV shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ 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, (~~not~~ 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 ~~be unreasonably withheld, delayed or conditioned),~~ the ~~parties~~ Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to ~~a given Incremental Amendment may specify therein~~ assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 ~~added to, an existing Tranche of~~ in Pro Forma Compliance after giving effect to such Incremental Term ~~Loans, in any case so long as the following requirements are satisfied: (i)~~ Loan Commitment and/or Incremental Revolving Facility Commitments and the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made ~~pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date~~ thereunder and the ~~same Applicable Margins~~ application of the proceeds therefrom as if made and applied on such date. (d) Each of the ~~Tranche of Term Loans~~ parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ~~which the new~~ ensure that all Incremental Term Loans ~~are being added;~~ and/or Incremental Revolving Facility Loans (~~ii) the new Incremental~~ other than Other Term Loans ~~shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans~~ or Other Revolving Facility Loans), when originally made, 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth included in ~~Section 2.09, such new Incremental Term Loans shall be added to (and form part of)~~ 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 ~~Tranche~~ 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 ~~relative sizes~~ 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 ~~various outstanding Borrowings~~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), ~~so that each Lender holding~~ the Extended Term Loans ~~under~~ shall have (x) the ~~respective Tranche~~ 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 ~~participates in each outstanding Borrowing~~ 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 to maturity of the ~~respective Tranche~~ Existing Term Loans, (~~after giving effect~~ iv) except as to interest rates, fees and final maturity, any Extended Revolving Facility Commitment shall be a Revolving Facility Commitment with the ~~incurrence~~ same terms as a Class of ~~such new Incremental~~ Existing Revolving Facility Loans and (v) any Extended Term Loans ~~pursuant to Section 2.01(b))~~ 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~~. To~~ ) in 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 ~~provisions~~ 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 ~~preceding clause~~ foregoing clauses (~~iii~~A) ~~require that Incremental~~ 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 ~~making new Incremental~~ providing such Extended Term Loans ~~add such~~ 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 ~~to the then outstanding Borrowings of LIBO Rate Loans of~~ and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such ~~Tranche, it is acknowledged that the effect thereof~~ deemed amendment may ~~result~~ be memorialized 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 Rate 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 writing by ~~any~~ the Administrative Agent of with the ~~LIBO Rate, in such circumstances pursuant~~ applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the ~~immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all~~ other parties hereto. (dg) ~~Subject to compliance with~~ 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 ~~applicable requirements~~ 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 ~~2.15~~2.21), 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~~ aggregate amount of Extended Term Loans ~~and/or~~ and Extended Revolving Facility Commitments ~~being extended~~will not be included in the calculation of the Incremental Amount, ~~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~~ 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 ~~any Incremental~~ Extended 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.Extended Re

Appears in 1 contract

Sources: Amendment Agreement (Hexion Specialty Chemicals, Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed in the ~~date of~~ aggregate 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided , that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental ~~Facility Test~~Term Lender, ~~any Incurrence-Based~~ such Incremental ~~Amount that may be incurred thereunder on such date~~Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested, (ii) the date on which ~~Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans,~~ such Incremental Term Loan Commitments ~~or other Term Loans), unless~~ and/or Incremental Revolving Facility Commitments are requested to become effective (the ~~requirements of Section 2.15(c~~“ Increased Amount Date ”) ~~are satisfied), which designation shall be set forth~~ and (iii) in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans ~~shall have~~ or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the ~~same terms as each other Tranche of~~ Term B Loans (“ Other Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided , that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have ~~been delivered~~ (x) the 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 with the Term B Loans made on or prior to the date that is eighteen (x18) ~~all fees required to be paid~~ months after the Closing Date shall not exceed 0.50% or more above the Yield in ~~connection therewith at~~ respect of the ~~time~~ 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) the final maturity date of any Other Term Loans shall be no earlier than the Term B 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 to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall ~~have been paid~~ thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (~~including, without limitation, any agreed upon upfront or arrangement fees owing~~ 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 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 ~~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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section ~~2.15~~2.20 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, provided that in the event that the Incremental Term Loan Commitments ~~provided by an Incremental Lender or Incremental Lenders~~are used to finance a Permitted Business Acquisition, as the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be ~~separate~~ limited to customary “specified representations” and ~~distinct from~~ those representations included in the ~~existing Tranches pursuant~~ related acquisition agreement that are material to ~~this Agreement; provided that~~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, ~~with~~ and the ~~consent~~ condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall 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 (~~not~~ including amendments to ~~be unreasonably withheld, delayed or conditioned),~~ the ~~parties~~ Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to ~~a given Incremental Amendment may specify therein~~ assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, ~~and be added~~ to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to~~, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied: (i~~) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made ~~pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date~~ thereunder and the ~~same Applicable Margins~~ application of the proceeds therefrom as if made and applied on such date. (d) Each of the ~~Tranche of Term Loans~~ parties hereto ▇▇▇▇▇▇ agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ~~which the new~~ ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are ~~being added;~~ included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) ~~the new~~ all Revolving Facility Loans in respect of Incremental ~~Term~~ 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 ~~have the same Scheduled Repayment Dates as then remain with respect~~ apply to ~~the Tranche to which such new Incremental Term Loans are being added (with the amount~~ any conversion of ~~each Scheduled Repayment applicable to such new Incremental Term~~ Eurocurrency Loans to be ABR Loans reasonably required by the ~~same (on a proportionate basis) as is theretofore applicable~~ Lenders to effect 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~~foregoing. (~~iii~~e) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement (including Section ~~2.09~~2.18(c) (which provisions shall not be applicable to clauses (e) through (l) of this Section 2.20)) or any other Loan Document, ~~such new Incremental Term Loans shall be added~~ pursuant to ~~(and form part of) each Borrowing~~ one or more offers made from time to time by the Borrower to all Lenders of ~~outstanding Term Loans of the applicable Tranche~~ a particular Facility on a pro rata basis (~~based on~~ “ Extension Offers ”), the ~~relative sizes~~ Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in 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 ~~various outstanding Borrowings~~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 ”), so (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 ~~holding~~ 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 ~~under~~ shall have (x) the ~~respective~~ 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 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 ▇▇▇▇▇▇’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 ~~participates in each outstanding Borrowing of Term Loans of the respective Tranche~~ then existing (after giving effect to the ~~incurrence~~ prepayment thereof on or promptly following the applicable date of ~~such new Incremental~~ 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 ~~Loans~~ Loan pursuant to this Section ~~2.01(b)~~2.20(h) on shall cease to be part of a ~~pro rata basis. To~~ Revolving Facility Commitment and shall not be part of an Extended Revolving Facility Commitment, and the ~~extent~~ Administrative Agent shall reallocate any participations in the ~~provisions~~ Revolving Letters of ~~the preceding clause (iii)~~ Credit and require prepayments and reborrowings of any outstanding Revolving Facility Loans so that ~~Incremental Lenders making new Incremental Term~~ after giving effect thereto, such participations and Revolving Facility Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ~~permitted notwithstanding~~ ratable as contemplated hereby. (i) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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 Agreement or any other Loan Document (including this Section ~~2.15~~2.20), 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~~ aggregate amount of Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments will not be included in the ~~relevant series~~ calculation of ~~Term Loans and/or Commitments being extended~~the Incremental Amount, ~~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~~ no Extended Term Loan, Extended Revolving Facility Commitment or Extended Synthetic L/C Commitment is required to be in any minimum amount of or any ~~Incremental Term Loans does not exceed the sum of~~ minimum increment, (xiii) ~~the principal amount of~~ except as set forth in the applicable ~~Term Loans effectively being extended~~Extension Offer, ~~repriced~~ any Extending Lender may extend all 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 portion of ~~such Incremental~~ its Term Loans., Revolvin

Appears in 1 contract

Sources: Credit Agreement (Realogy Holdings Corp.)

Incremental Commitments. (a) Except during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or 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 the Incremental Amount available at the time such Incremental Term Loans ~~incurred~~ are funded or Incremental Revolving Facility Commitments are established (except as set forth in ~~connection therewith~~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, ~~each~~that in the case of the foregoing clause (y), an 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 Incremental Term ~~Loan” and~~Lenders and/or Incremental Revolving Facility Lenders (which, ~~collectively~~in each case, ~~the “~~may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term ~~Loans” and~~Loans and/or Incremental Revolving Facility Commitments, ~~collectively with any~~ as the case may be, in their sole discretion; provided, that each Incremental Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”)~~ Facility Lender providing a commitment to ~~Borrower and,~~ make revolving loans shall be 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 approval 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~~ 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 Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent (~~i.e.~~which approval shall not be unreasonably withheld, ~~not~~ conditioned or delayed)), (ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ 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 shall 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, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, ~~unless the requirements of~~ no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section ~~2.15(c) are satisfied), which designation~~ 2.21 and any election to do so shall be ~~set forth~~ in the sole discretion of such Lender. (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental ~~Amendment~~Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (~~viii~~i) if any (x) commitments to ~~be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ make additional Initial Term Loans shall have the same terms as ~~each other Tranche of~~ the Initial Term ~~Loans as in effect immediately prior to the effectiveness~~ Loans, and shall form part of the ~~relevant Incremental Amendment, except as to purpose (which is subject to the requirements~~ same Class of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 Initial Term Loans and ~~the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans,~~ (IIy) ~~the Effective Yield applicable to such Tranche of~~ Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, 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 denominated in Dollars, if the 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 Revolving Facility Commitments shall be increased as of such date (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ same terms as the then outstanding Class of ~~interest applicable to~~ Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving ~~Commitment Increase shall be~~ Facility Commitments with the ~~same as the rate of interest applicable to the Initial~~ then latest Revolving ~~Loans, (B~~Facility Maturity Date) ~~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 Facility Commitments ~~that is in effect on the effective date of the Revolving Commitment Increase~~ or (~~immediately prior to the establishment of~~ B) 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~~ shall be reasonably satisfactory to the Administrative ~~Agent~~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 (~~xii~~a) ~~all~~ 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 be subject to a Permitted Junior Intercreditor Agreement) or (B) be unsecured, (iii) (A) the final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the 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 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 participates on a greater than pro rata basis 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 Term Loans in any mandatory prepayment hereunder (and, for the avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)), (vii) 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 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 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 Facility Commitments shall not be secured by any ~~assets that do not constitute Collateral~~ 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 ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties~~avoidance of doubt, ~~(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~~ extent applicable, to (x) provide that the ~~relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or~~ Lenders providing any Permitted Incremental Term Loans ~~under~~ shall have the ~~Tranche specified~~ benefit of the Financial Covenants and be included in ~~such Incremental Amendment as provided in Section 2.01(c~~the “Required Lenders” and (y) (make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to ~~Incremental Term Loans)~~ 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 ~~applicable Incremental Amendment (with respect to Incremental Revolving Loans)~~ any such collateral and ~~such Loans~~ other documentation shall ~~thereafter~~ be deemed to “Loan Documents” hereunder and may 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, memorialized in writing by the Administrative Agent ~~and each such Lender (~~with the Borrower’s consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender~~ (not to be unreasonably ~~withheld~~ withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or ~~delayed~~any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) (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 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 ~~consent~~tranche of Incremental Loans, ~~if any~~as applicable, ~~would be required~~ agree, no Event of Default 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 CommitmentsSections 7.01(b), (yc), (h) ~~all Incremental Commitment Requirements are satisfied,~~ or (i)) shall exist; (iii) (iii) the representations and ~~(z) all other conditions~~ warranties of the Borrower set forth in this ~~Section 2.15~~ Agreement shall be true and correct in all material respects (other 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 (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 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 result of a failure of such representations to be accurate; and (iv) (iv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have ~~been satisfied~~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 or with respect to any Other Incremental Term Loans, the Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment,~~ Assumption Agreement. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and ~~at such time,~~ all action as may be reasonably necessary to ensure that (i) ~~Schedule 2.01 shall be deemed modified to reflect the revised~~ all Incremental ~~Commitments~~ Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the ~~affected Lenders~~ outstanding applicable Class of Term Loans on a pro rata basis, and (ii) ~~to the extent requested by any~~ all Revolving Facility Loans in respect of Incremental ~~Lender~~Revolving Facility Commitments, ~~Term Notes or Revolving Notes~~when originally made, ~~as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ are included in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of ~~outstanding Term Loans of~~ the applicable ~~Tranche on a pro rata basis (based on the relative sizes~~ Class of ~~the various~~ outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term ~~Loans add such Incremental Term~~ Benchmark Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (de) ~~Subject~~ Notwithstanding the restriction on the ability of the Borrower to ~~compliance with the other applicable requirements set forth in this Section 2.15, any new~~ request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments under Section 2.21(a) during the Covenant Relief Period, the Borrower may ~~be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing,~~ request up to $25,000,000 in ~~whole or~~ Incremental Revolving Facility Commitments 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~~ connection 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 LoansAmendment No. 4.

Appears in 1 contract

Sources: Incremental Assumption Agreement (Westrock Coffee Co)

Incremental Commitments. (a) AfterExcept during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or 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 the Incremental Amount available at the time such Incremental Term Loans ~~incurred~~ are funded or Incremental Revolving Facility Commitments are established (except as set forth in ~~connection therewith~~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, ~~each~~that in the case of the foregoing clause (y), an 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 Incremental Term ~~Loan” and~~Lenders and/or Incremental Revolving Facility Lenders (which, ~~collectively~~in each case, ~~the “~~may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term ~~Loans” and~~Loans and/or Incremental Revolving Facility Commitments, ~~collectively with any~~ as the case may be, in their sole discretion; provided, that each Incremental Revolving ~~Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”)~~ Facility Lender providing a commitment to ~~Borrower and,~~ make revolving loans shall be 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 approval 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~~ 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 Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche~~ minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent (~~i.e.~~which approval shall not be unreasonably withheld, ~~not~~ conditioned or delayed)), (ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ 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 shall 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, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, ~~unless the requirements of~~ no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section ~~2.15(c) are satisfied), which designation~~ 2.21 and any election to do so shall be ~~set forth~~ in the sole discretion of such Lender. (b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental ~~Amendment~~Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (~~viii~~i) if any (x) commitments to ~~be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ make additional Initial Term Loans shall have the same terms as ~~each other Tranche of~~ the Initial Term ~~Loans as in effect immediately prior to the effectiveness~~ Loans, and shall form part of the ~~relevant Incremental Amendment, except as to purpose (which is subject to the requirements~~ same Class of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 Initial Term Loans and ~~the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans,~~ (IIy) ~~the Effective Yield applicable to such Tranche of~~ Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, 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 denominated in Dollars, if the 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 Revolving Facility Commitments shall be increased as of such date (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ same terms as the then outstanding Class of ~~interest applicable to~~ Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving ~~Commitment Increase shall be~~ Facility Commitments with the ~~same as the rate of interest applicable to the Initial~~ then latest Revolving ~~Loans, (B~~Facility Maturity Date) ~~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 Facility Commitments ~~that is in effect on the effective date of the Revolving Commitment Increase~~ or (~~immediately prior to the establishment of~~ B) 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~~ shall be reasonably satisfactory to the Administrative ~~Agent~~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 (~~xii~~a) ~~all~~ 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 be subject to a Permitted Junior Intercreditor Agreement) or (B) be unsecured, (iii) (A) the final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the 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 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 participates on a greater than pro rata basis 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 Term Loans in any mandatory prepayment hereunder (and, for the avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)), (vii) 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 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 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 Facility Commitments shall not be secured by any ~~assets that do not constitute Collateral~~ 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 ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties~~avoidance of doubt, ~~(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~~ extent applicable, to (x) provide that the ~~relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or~~ Lenders providing any Permitted Incremental Term Loans ~~under~~ shall have the ~~Tranche specified~~ benefit of the Financial Covenants and be included in ~~such Incremental Amendment as provided in Section 2.01(c~~the “Required Lenders” and (y) (make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to ~~Incremental Term Loans)~~ 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 ~~applicable Incremental Amendment (with respect to Incremental Revolving Loans)~~ any such collateral and ~~such Loans~~ other documentation shall ~~thereafter~~ be deemed to “Loan Documents” hereunder and may 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, memorialized in writing by the Administrative Agent ~~and each such Lender (~~with the Borrower’s consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender~~ (not to be unreasonably ~~withheld~~ withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or ~~delayed~~any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) the Borrower shall be in compliance with the Standard Financial Covenants; (ii) no 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 ~~consent~~tranche of Incremental Loans, ~~if any~~as applicable, ~~would be required~~ agree, no Event of Default 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 CommitmentsSections 7.01(b), (yc), (h) ~~all Incremental Commitment Requirements are satisfied,~~ or (i)) shall exist; (iii) the representations and ~~(z) all other conditions~~ warranties of the Borrower set forth in this ~~Section 2.15~~ Agreement shall be true and correct in all material respects (other 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 (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 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 result of a failure of such representations to be accurate; and (iv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have ~~been satisfied~~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 or with respect to any Other Incremental Term Loans, the Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment,~~ Assumption Agreement. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and ~~at such time,~~ all action as may be reasonably necessary to ensure that (i) ~~Schedule 2.01 shall be deemed modified to reflect the revised~~ all Incremental ~~Commitments~~ Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the ~~affected Lenders~~ outstanding applicable Class of Term Loans on a pro rata basis, and (ii) ~~to the extent requested by any~~ all Revolving Facility Loans in respect of Incremental ~~Lender~~Revolving Facility Commitments, ~~Term Notes or Revolving Notes~~when originally made, ~~as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ are included in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of ~~outstanding Term Loans of~~ the applicable ~~Tranche on a pro rata basis (based on the relative sizes~~ Class of ~~the various~~ outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term ~~Loans add such Incremental Term~~ Benchmark Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Westrock Coffee Co)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~incurrence), (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Term B-2 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding ~~Initial~~ Term B-2 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-2 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (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 (~~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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 ~~Rate~~ RateSOFR 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 ~~Rate~~ RateSOFR 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 any the Administrative Agent of the LIBO ~~Rate,~~ RateAdjusted 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 (Iridium Communications Inc.)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right at any time ~~and~~ or from time to time on or after the Effective Date, upon written notice to and in coordination with the Administrative Agent as to all matters set forth in this Section 2.15, to request that one or more Lenders (or and/or one or more other Eligible ~~Transferees who~~ Assignees which will become Lenders) to provide ~~an increase in Revolving~~ Incremental Commitments (a the “~~Revolving~~ Incremental Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided that: (i) no Lender shall be obligated to provide an Incremental ~~Facility~~ Commitment as a result of any such request by the Borrower, ; (ii) any Lender (including any Eligible ~~Transferee who~~ Assignees which will become a Lender) may so provide an Incremental ~~Facility~~ Commitment without the consent of any other Lender, ; (iii) ~~each~~ the provision of Incremental ~~Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available~~ Commitments pursuant to this Section 2.15 on a given date pursuant to a ~~given~~ particular Incremental ~~Amendment~~ Commitment Agreement shall be in a minimum aggregate amount (for all Lenders ~~which provide such Incremental Facility thereunder (including~~ and other Eligible ~~Transferees~~ Assignees who will become ~~Lenders~~Lenders pursuant thereto) of ~~at least~~ not less than $~~10,000,000,~~ 25,000,000 (or such lesser amount as agreed to by the Borrower) and shall be in integral multiples of $5,000,000; (iv) such Incremental Commitments shall not exceed an aggregate principal amount of $100,000,000; (v) the ~~aggregate principal amount of any Loan or Commitment,~~ Administrative Agent shall promptly notify each Lender 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~~ effectiveness of ~~the applicable Incurrence-Based~~ each Incremental ~~Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Commitment Agreement; (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~~ not obtain Incremental Commitment Increases pursuant to this Section 2.15 more than five times and each notice thereof from the ~~Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche~~ Borrower shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same~~ requested amount and proposed terms ~~as each other Tranche of Term Loans as in effect immediately prior to the effectiveness~~ of the relevant Incremental ~~Amendment, except as~~ Commitment Increase; (vii) the upfront fees payable to ~~purpose (which is subject to the requirements~~ each Incremental Lender in respect of ~~the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that~~ each ~~new Tranche of~~ Incremental ~~Term Loans~~ Commitment shall be ~~entitled~~ separately agreed to ~~share in mandatory prepayments~~ by the Borrower and each such Incremental Lender; and (viii) (x) on ~~a ratable basis with~~ the ~~other Tranches~~ effective date of ~~Term Loans (unless~~ any Incremental Commitment Increase, the ~~holders~~ Commitment of each Lender shall be increased by the amount of the Incremental ~~Term Loans of any Tranche agree to take a lesser share of any~~ Commitment Increase incurred by such ~~prepayments)); provided~~Lender, ~~however~~if any, ~~that~~ and (Iy) 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 Term Loans Latest Maturity Date as of the date such Indebtedness was~~ incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable pursuant to such ~~Tranche of~~ Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ constitute Loans ~~and the Closing Date Revolving Commitments, and,~~ for all purposes of this Agreement and the other Credit ~~Documents~~Documents and shall be made on the same terms as the Loans and, as a consequence, 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 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 ~~Security Agreement~~Collateral Rig Mortgages, and ~~guaranteed under each relevant Guaranty~~receive the benefit of the Guarantees, on a pari passu basis with all other ~~Loans~~ Obligations secured by the ~~Security Agreement~~ Collateral Rig Mortgages and ~~guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for~~ receiving the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (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 benefit 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 satisfiedGuarantees. (b) At On or prior to the ~~time~~ effective date of ~~the provision of~~ any Incremental ~~Commitments pursuant to this Section 2.15, Borrower~~Commitment Increase, the ~~Administrative Agent~~ following conditions shall have been satisfied: (i) the Borrower 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 such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible ~~Transferee~~ Assignee (each an “Incremental Lender”) which agrees to provide an Incremental Commitment ~~(each, an “Incremental Lender”)~~ shall execute and deliver to the Administrative Agent an Incremental ~~Amendment~~ Commitment Agreement substantially in the form of Exhibit 2.15 (~~which shall not require the consent of any other Lender~~appropriately completed) (each an “Incremental Commitment Agreement”), with the effectiveness of ~~the~~ such Incremental Lender’s Incremental Commitment ~~provided therein~~ to occur on the date ~~on which (w) a fully executed copy of~~ set forth in such Incremental ~~Amendment~~ Commitment Agreement, provided that the Administrative Agent shall have ~~been~~ consented (such consent not to be unreasonably withheld) to such Eligible Assignee providing such Incremental Commitment if such consent would be required under Section 10.10 for an assignment of Loans or Commitments, as applicable, to such Eligible Assignee; (ii) the Borrower and each Loan Party shall have delivered such amendments, modifications and/or supplements to the Credit Documents as are necessary or in the reasonable opinion of the Administrative Agent, ~~(x) all fees required~~ desirable to insure that the additional Obligations to be ~~paid~~ incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Collateral Rig Mortgages and the Guarantees; (iii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such date pursuant to the Incremental Commitments are permitted by the terms of the outstanding Indebtedness of Holdings and its applicable Subsidiaries; (iv) the Borrower and the other Loan Parties shall deliver to the Administrative Agent such other officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably request; (v) each of the representations and warranties of the Loan Parties set forth herein and in ~~connection therewith~~ the other Credit Documents shall be true and correct in all material respects (except any such representation or warranty that is qualified or limited by its terms by materiality, in which case such representation or warranty shall be true and correct) at the time of a request for Incremental Commitments and upon the effectiveness of any Incremental Commitment Agreement (in each case, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date); (vi) no Default or Event of Default shall exist at the time of a request for Incremental Commitments or upon the effectiveness ~~shall have been paid~~ of any Incremental Commitment Agreement; and (vii) after giving effect to such Incremental Commitment Increase, any limitations on Subsidiary Indebtedness or secured Indebtedness set forth in any material agreement (including, without limitation, the Indentures and the Existing Credit Agreement) that is binding on Holdings and/or any ~~agreed~~ of its Subsidiaries will not be exceeded and, upon ~~upfront or arrangement fees owing to~~ request by the Administrative Agent, the Borrower shall have provided the Administrative Agent with calculations in reasonable detail to establish 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~~ satisfaction of 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lendercondition precedent. (c) ~~Notwithstanding anything~~ On the effective date of any Incremental Commitment Increase pursuant to ~~the contrary contained above in~~ this Section 2.15, the ~~Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders~~Borrower shall, ~~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,~~ in coordination with the ~~consent of the~~ Administrative ~~Agent (not to be unreasonably withheld~~Agent, 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of repay outstanding ~~Term~~ Loans of the ~~applicable Tranche on a pro rata basis (based on~~ existing Lenders and incur additional Loans from certain other new Lenders, in each case to the ~~relative sizes~~ extent necessary so that all of the ~~various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates~~ Lenders participate in each outstanding Borrowing of ~~Term~~ Loans pro rata on the basis of ~~the~~ their respective ~~Tranche~~ Incremental Commitments (after giving effect to any increase in the ~~incurrence of such new Incremental Term Loans~~ total Commitment pursuant to this Section ~~2.01(b~~2.15)~~) on a~~ . The Borrower shall be obligated to pay to the respective Lenders the costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, 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~~ borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the then outstanding Borrowings of LIBO Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected 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~~ extent such requirements are ~~offered the opportunity to participate in~~ inconsistent with 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 Loanssentence.

Appears in 1 contract

Sources: Credit Agreement (Transocean Ltd.)

Incremental Commitments. (ai) The Borrower ~~may~~ shall have the right to request (by written notice to the Agent), at any time ~~and from time to time request~~ after the Effective Date, that one or more Lenders (or and/or one or more other Persons which are Eligible ~~Transferees who~~ Assignees and which will become ~~Lenders) to provide an increase in Revolving Commitments~~ Lenders (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Lender”)) provide an increase in any existing Class of Commitments and/or Term ~~Loan” and~~Loans (except as otherwise provided in this clause (d), ~~collectively~~which shall be on the same terms as, and become a part of, the ~~“Incremental~~ applicable Class of Commitments and/or Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”Loans hereunder) ~~to Borrower~~ and, subject to the terms and conditions contained in this Agreement and in the ~~relevant~~ respective commitment agreement with such Incremental ~~Amendment~~Lender, ~~provide commitments and/or~~ make Term Loans (“Incremental Term Loans”) of the applicable Class pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental ~~Facility~~ Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment such Lender shall not be obligated to fund any Incremental Term Loans; (ii) any Lender (including any ~~Eligible Transferee who will become a~~ Incremental Lender) may so provide an Incremental ~~Facility~~ Commitment without the consent of any other Lender, ; (iii) each incurrence of Incremental ~~Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available~~ Commitments pursuant to ~~a given Incremental Amendment~~ this clause (d) shall be in a minimum aggregate amount for all Lenders which provide ~~such~~ an Incremental ~~Facility thereunder~~ Commitment (including ~~Eligible Transferees who will become Lenders~~any Incremental Lender) of at least $~~10,000,000,~~ 5,000,000 and in integral multiples of $1,000,000 in excess thereof; (iv) the aggregate amount of Incremental Commitments to be incurred pursuant to this clause (d) at any time shall not exceed the Maximum Incremental Amount at such time; (v) the ~~aggregate principal amount of any Loan or Commitment~~up-front fees and, as if applicable, ~~pursuant~~ any unutilized commitment fees and/or other fees, payable to an each Incremental ~~Facility on~~ Lender in respect of each Incremental Commitment shall be separately agreed to by 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 Borrower and each 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, Lender; (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same ~~terms~~ Applicable Margin as ~~each other Tranche~~ the Class of Term Loans ~~as in effect immediately prior~~ to ~~the effectiveness of the 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 each new Tranche of such Incremental Term Loans ~~shall be entitled to share in mandatory prepayments on a ratable basis with~~ are being added; (vii) the ~~other Tranches~~ proceeds of ~~Term Loans (unless the holders of the~~ all Incremental Term Loans of to be made pursuant to any ~~Tranche agree to take a lesser share of any such prepayments))~~Incremental Commitments shall be used only for the purposes permitted by Section 2.17; ~~provided, however, that~~ (Iviii) ~~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 ~~Term Loans Latest~~ same Maturity Date as the Class of ~~the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding~~ Term Loans ~~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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the Effective Yield for any which 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 (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”)are being added; 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ all 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 subsequently incurred pursuant to such ~~Revolving~~ Incremental 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 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 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, (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 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) no Default or Event of Default then exists or would result therefrom; (xi) all ~~fees~~ of the representations and warranties contained herein are true and correct in all material respects at such time (it being understood that (x) any representation and warranty that is qualified by materiality or Material Adverse Effect shall be required to be ~~paid~~ true and correct 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), all respects and (y) ~~all Incremental Commitment Requirements are satisfied,~~ any representation and ~~(z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender~~ warranty which by its terms is made as ~~to the effectiveness~~ of ~~each Incremental Amendment, and at such time, (i) Schedule 2.01~~ a specified date shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, required to be true and correct in ~~conformity with the requirements of Section 2.05~~ all material respects (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~~all respects, as the case may be) as of such earlier date);(xii) except as otherwise provided above, 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~~ Commitment and/or Incremental Term Loans shall have the same ~~Scheduled Repayment Dates~~ terms as ~~then remain with respect to~~ the ~~Tranche~~ Class of Commitments and/or Term Loans 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 Commitment and/or Incremental Term Loans are being added~~, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately)~~; ~~and~~ (~~iii~~xiii) on the date of the making of such new Incremental Term Loans, ~~and notwithstanding anything to the contrary set forth in Section 2.09,~~ such new Incremental Term Loans shall be added to (and ~~form~~ constitute a part of) each ~~Borrowing~~ borrowing of outstanding Term Loans of the ~~applicable Tranche~~ same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender ~~holding Term Loans under the respective Tranche of Term Loans participates~~ will participate proportionately in each then outstanding ~~Borrowing~~ borrowing of Term Loans of the same type with the same Interest Period of the respective ~~Tranche~~ Class; (~~after giving effect to~~ xiv) the ~~incurrence of such new~~ Incremental Commitment and Incremental Term Loans must be "fungible" for tax purposes with the Term Loan Facility to which it is added; and (xv) the Borrower agrees to terminate in full any unutilized Initial Commitments, if any, prior to obtaining any Incremental Commitments. No Incremental Commitment shall be effective until the Agent shall have received a certificate from the Chief Financial Officer or Treasurer of the Borrower confirming that the conditions set forth in this Section 2.05(d) have been satisfied. (ii) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment), under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement executed by the Borrower, each Incremental Lender providing such Commitment and the Agent. The Incremental Amendment may, without the consent of any other Lender, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Agent (acting at the written direction of Required Lenders) and the Borrower, to effect the provisions of this Section ~~2.01(b~~2.05(d). To the extent reasonably requested by the Agent (acting at the written direction of Required Lenders), the Agent shall have received customary legal opinions, board resolutions, officers’ certificates and/or solvency certificates consistent with those delivered on the Effective Date under Section 3.01 (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Required Lenders). (iii) ~~on a pro rata basis.~~ To the extent the provisions of the preceding clause (~~iii~~i)(xiii) require that ~~Incremental~~ Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding ~~Borrowings~~ borrowings of ~~LIBO~~ LIBOR Rate Loans of ~~such Tranche~~the respective Class of Term Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having ~~irregular~~ short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding ~~LIBO~~ LIBOR Rate Loans of ~~such Tranche~~ the respective Class and which will end on the last day of such Interest Period). In connection therewith, ~~which irregular interest periods shall~~ the Borrower hereby agrees to compensate the Lenders making the new Incremental Term Loans of the respective Class for funding LIBOR Rate Loans during an existing Interest Period on such basis as may be ~~permitted notwithstanding~~ agreed by the Borrower and the respective Lender or Lenders. (iv) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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~~2.05(d), the Borrower hereby agrees to offer the existing Lenders a right of first refusal for a period of at least three (3) Business Days to provide 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~~ terms and conditions offered to any potential 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 Lender; provided that no Lender shall be obligated 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 provide such Incremental ~~Term Loans~~Commitment.

Appears in 1 contract

Sources: Subordinated Delayed Draw Credit Agreement (Gencorp Inc)

Incremental Commitments. (a) The Borrower may ~~at any time and from time to time request~~ on 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”)~~occasions, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 written notice to the Administrative Agent ~~an Incremental Amendment~~ (which shall ~~not require the consent of any other~~ promptly deliver a copy thereof to each Lender), ~~with~~ request the ~~effectiveness~~ establishment of Incremental Commitments, provided that the aggregate amount of all the Incremental ~~Commitment provided therein to occur on~~ Commitments established hereunder shall not exceed $20,000,000. Each such notice shall specify (i) the date on which ~~(w)~~ the Borrower proposes that the Incremental Commitments shall be effective, which shall be a ~~fully executed copy of~~ date not less than 15 days after the date on which such ~~Incremental Amendment shall have been~~ notice is 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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 the Incremental Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested equal to its Applicable Percentage (calculated disregarding the Commitments of Defaulting Lenders, if any) thereof. Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage (as so calculated) of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Commitments in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; provided that any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and each Issuing Bank. (b) The terms and conditions of any Incremental ~~Term~~ Commitment and Loans ~~does~~ and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not ~~exceed~~ decrease) the ~~sum~~ Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase is effective for the benefit of all the Lenders hereunder on equal terms. (xc) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section (including any increase referred to in paragraph (b) above). (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender, if not already a Lender, shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) On the date of effectiveness of any Incremental Commitments, each Lender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and participations in Letters of Credit and Protective Advances outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit and Protective Advances will be held by all the ~~applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses~~ Lenders (including ~~any prepayment premium, penalties or other call protection~~such Incremental Lenders) 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 ratably in accordance with their Applicable Percentages after giving effect to the ~~establishment and incurrence~~ effectiveness of such Incremental ~~Term Loans~~Commitment. The Administrative Agent shall notify the Lenders promptly of the effectiveness of any Incremental Commitments, advising the Lenders of the details thereof and of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to this paragraph.

Appears in 1 contract

Sources: Credit Agreement (Pandora Media, Inc.)

Incremental Commitments. (a1) ~~Borrower~~ The Borrowers may at any time ~~and~~ or from time to time after the Closing Date, by notice to the Administrative Agent (an “Incremental Commitment Request”), request one or more ~~Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase~~ increases in ~~Revolving Commitments~~ the amount of the Aggregate Commitment (a “~~Revolving~~ Commitment Increase”~~), one or more additional Tranches of Revolving Commitments~~ ) under the Credit Facility (~~an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (~~any such ~~Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively~~new Commitments, the “Incremental ~~Term Loans” and~~Commitments”), ~~collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively,~~ whereupon the ~~“Incremental Facilities”~~Administrative Agent shall promptly deliver a copy to each of the Lenders. (2) 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 On 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 on which 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 Incremental Commitments ~~that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to~~ are effected through the establishment of ~~such Revolving~~ any 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 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 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, (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~~ terms and conditions ~~set forth~~ in this ~~Agreement~~Section 2.12, (i) each Incremental Lender shall make its new Commitment available rateably to the Borrowers in an amount equal to its Incremental ~~Revolving Loans and/or~~ Commitment and (ii) each Incremental ~~Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (~~Lender shall become a Lender hereunder with respect to the 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 Commitment and the ~~other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied~~Accommodations made pursuant thereto. (b3) At Each Incremental Loan Request from the ~~time of the provision of Incremental Commitments~~ Borrowers pursuant to this Section ~~2.15~~2.12 shall set forth the requested amount of the relevant Incremental Commitments. Incremental Commitments may be provided by any existing Lender (but no existing Lender will have an obligation to make any Incremental Commitment), ~~Borrower~~or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”, and each such existing Lender or Additional Lender, the “Incremental Lenders”); provided that the Administrative Agent and ~~each~~ the Swing Line Lender shall have consented (such ~~Lender (with the~~ consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender (~~not to be unreasonably withheld or delayed) to such Lender or Additional Lender providing such Commitment Increases to the extent such consent, if any, would be required under Section ~~13.04(b~~17.01(2) for an assignment of ~~Loans~~ Commitments or Accommodations Outstanding, as applicable, to such ~~Person~~Lender or Additional Lender. (4) The terms of such Incremental Commitments shall be identical to the Commitments. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: (a) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments; (b) each Incremental Commitment shall be in an aggregate principal amount that is not less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, and shall be in an increment of Cdn. $1,000,000 or U.S. $1,000,000, as applicable (provided that such amount may be less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.12(4)); (c) the aggregate amount of the Incremental Commitments shall not exceed Cdn. $75,000,000; (d) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates substantially consistent with those delivered on the Closing Date and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that such incremental Debt is provided with the benefit of the applicable Credit Documents; and (e) such other ~~Eligible Transferee which agrees to provide~~ conditions as the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. (5) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (~~each,~~ an “Incremental ~~Lender~~Amendment”) ~~shall execute~~ to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrowers, the other Loan Parties, each Incremental Lender providing such Commitments and ~~deliver~~ the Administrative Agent. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent ~~an Incremental Amendment (which shall not require~~ and the Borrowers, to effect the provisions of this Section 2.12(5), without the consent of any Lender or any other ~~Lender)~~Loan Party. (6) Upon any Incremental Facility Closing Date on which Incremental Commitments are effected, ~~with~~ (a) each of the ~~effectiveness~~ existing Lenders shall assign to each of the Incremental ~~Commitment provided therein to occur~~ Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the Accommodations Outstanding 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 Facility Closing Date 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~~ necessary in order that, after giving effect to ~~reflect the revised Incremental Commitments of the affected~~ all such assignments and purchases, such Accommodations will be held by existing Lenders and ~~(ii) to the extent requested by any~~ Incremental ~~Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ Lenders ratably in ~~conformity~~ accordance with ~~the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental~~ their 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the ~~incurrence~~ addition of such ~~new~~ Incremental ~~Term Loans pursuant to Section 2.01(b)~~Commitments, (b) on each Incremental Commitment shall be deemed for all purposes a ~~pro rata basis. To the extent the provisions of the preceding clause~~ Commitment and each Accommodation made thereunder shall be deemed, for all purposes, an Accommodation and (~~iii~~c) ~~require that~~ each Incremental ~~Lenders making new Incremental Term Loans add such Incremental Term Loans~~ Lender shall become a Lender with respect to the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged~~ Incremental Commitments and all matters relating thereto. The parties hereto hereby agree that the ~~effect thereof may result~~ minimum borrowing and repayment requirements 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 Rate Loans~~ Article 3 of ~~such Tranche and which will end on the last day of such Interest Period), which irregular interest periods~~ this Agreement shall ~~be permitted notwithstanding anything~~ not apply to the ~~contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances~~ transactions effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (Vail Resorts Inc)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed in the ~~date of~~ aggregate 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental ~~Facility Test~~Term Lender, ~~any Incurrence-Based~~ such Incremental ~~Amount that may be incurred thereunder on such date~~Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested, (ii) the date on which ~~Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans,~~ such Incremental Term Loan Commitments ~~or other Term Loans), unless~~ and/or Incremental Revolving Facility Commitments are requested to become effective (the ~~requirements of Section 2.15(c~~“Increased Amount Date”) ~~are satisfied), which designation shall be set forth~~ and (iii) in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans ~~shall have~~ or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the ~~same terms as each other Tranche of~~ Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have ~~been delivered~~ (x) the 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 with the Term B Loans made on or prior to the date that is eighteen (x18) ~~all fees required to be paid~~ months after the Fifth Amendment Effective Date shall not exceed 0.50% or more above the Yield in ~~connection therewith at~~ respect of the ~~time~~ 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) the final maturity date of any Other Term Loans shall be no earlier than the Term B 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 to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall ~~have been paid~~ thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (~~including, without limitation, any agreed upon upfront or arrangement fees owing~~ 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 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 ~~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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.20 unless, as subject to Section 1.04: (i) on the ~~case may be~~date of such effectiveness, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ the Administrative Agent ~~(not~~ shall have received a certificate to ~~be unreasonably withheld~~that effect dated such date and executed by a Responsible Officer of the Borrower, ~~delayed or conditioned)~~provided that in the event that thecase of any Incremental Limited Condition Term Loan Commitments are used to finance a Permitted Business Acquisition, the ~~parties~~ 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 ~~given~~ 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 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 ~~Amendment~~ 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 ~~specify therein~~ reasonably require to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, ~~and be added~~ to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to~~, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied: (i~~) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made ~~pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date~~ thereunder and the ~~same Applicable Margins~~ application of the proceeds therefrom as if made and applied on such date. (d) Each of the ~~Tranche of Term Loans~~ parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ~~which the new~~ ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are ~~being added;~~ included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) ~~the new~~ all Revolving Facility Loans in respect of Incremental ~~Term~~ Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans shall have the same Scheduled Repayment Dates as then remain 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~~ pro rata basis) . The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans or Term Benchmark Loans, as ~~is theretofore applicable~~ applicable, to ABR Loans reasonably required by the ~~Tranche~~ Lenders to ~~which such new Incremental Term Loans are being added, thereby increasing~~ effect the ~~amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and~~foregoing. (~~iii~~e) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement (including Section ~~2.09, such new Incremental Term Loans~~ 2.18(c) (which provisions shall not be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate Loans~~ clauses (e) through (l) 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 any the Administrative Agent of the LIBO Rate, 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.this

Appears in 1 contract

Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)

Appears in 1 contract

Sources: First Lien Credit Agreement (Rackspace Technology, Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to ~~an Incremental Facility on~~ exceed in the ~~date of~~ aggregate 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 from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the ~~date of incurrence plus (y)~~ case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental ~~Facility Test~~Term Lender, ~~any Incurrence-Based~~ such Incremental ~~Amount that may be incurred thereunder on such date~~Term Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested, (ii) the date on which ~~Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans,~~ such Incremental Term Loan Commitments ~~or other Term Loans), unless~~ and/or Incremental Revolving Facility Commitments are requested to become effective (the ~~requirements of Section 2.15(c~~“Increased Amount Date”) ~~are satisfied), which designation shall be set forth~~ and (iii) in the ~~applicable Incremental Amendment, (viii) if to be incurred as a new Tranche~~ case of Incremental Term ~~Loans~~Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans ~~shall have~~ or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the ~~same terms as each other Tranche of~~ Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have ~~been delivered~~ (x) the 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 with the Term B Loans made on or prior to the date that is eighteen (x18) ~~all fees required to be paid~~ months after the Closing Date shall not exceed 0.50% or more above the Yield in ~~connection therewith at~~ respect of the ~~time~~ 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) the final maturity date of any Other Term Loans shall be no earlier than the Term B 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 to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall ~~have been paid~~ thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (~~including, without limitation, any agreed upon upfront or arrangement fees owing~~ 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 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 ~~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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderparties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in~~ foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section ~~2.15~~2.20 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, provided that in the event that the Incremental Term Loan Commitments ~~provided by an Incremental Lender or Incremental Lenders~~are used to finance a Permitted Business Acquisition, as the ~~case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be ~~separate~~ limited to customary “specified representations” and ~~distinct from~~ those representations included in the ~~existing Tranches pursuant~~ related acquisition agreement that are material to ~~this Agreement; provided that~~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, ~~with~~ and the ~~consent~~ condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall 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 (~~not~~ including amendments to ~~be unreasonably withheld, delayed or conditioned),~~ the ~~parties~~ Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to ~~a given Incremental Amendment may specify therein~~ assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, ~~and be added~~ to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to~~, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied: (i~~) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made ~~pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date~~ thereunder and the ~~same Applicable Margins~~ application of the proceeds therefrom as if made and applied on such date. (d) Each of the ~~Tranche of Term Loans~~ parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ~~which the new~~ ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are ~~being added;~~ included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) ~~the new~~ all Revolving Facility Loans in respect of Incremental ~~Term~~ 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 ~~have the same Scheduled Repayment Dates as then remain with respect~~ apply to ~~the Tranche to which such new Incremental Term Loans are being added (with the amount~~ any conversion of ~~each Scheduled Repayment applicable to such new Incremental Term~~ Eurocurrency Loans to be ABR Loans reasonably required by the ~~same (on a proportionate basis) as is theretofore applicable~~ Lenders to effect 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~~foregoing. (~~iii~~e) ~~on the date of the making of such new Incremental Term Loans, and notwithstanding~~ Notwithstanding anything to the contrary set forth in this Agreement (including Section ~~2.09~~2.18(c) (which provisions shall not be applicable to clauses (e) through (l) of this Section 2.20)) or any other Loan Document, ~~such new Incremental Term Loans shall be added~~ pursuant to ~~(and form part of) each Borrowing~~ one or more offers made from time to time by the Borrower to all Lenders of ~~outstanding Term Loans of the applicable Tranche~~ a particular Facility on a pro rata basis (~~based on~~ “Extension Offers”), the ~~relative sizes~~ Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in 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 ~~various outstanding Borrowings~~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”), so (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 ~~holding~~ 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 ~~under~~ shall have (x) the ~~respective~~ 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 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 ~~participates in each outstanding Borrowing of Term Loans of the respective Tranche~~ then existing (after giving effect to the ~~incurrence~~ prepayment thereof on or promptly following the applicable date of ~~such new Incremental~~ 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 ~~Loans~~ Loan pursuant to this Section ~~2.01(b)~~2.20(h) on shall cease to be part of a ~~pro rata basis. To~~ Revolving Facility Commitment and shall not be part of an Extended Revolving Facility Commitment, and the ~~extent~~ Administrative Agent shall reallocate any participations in the ~~provisions~~ Revolving Letters of ~~the preceding clause (iii)~~ Credit and require prepayments and reborrowings of any outstanding Revolving Facility Loans so that ~~Incremental Lenders making new Incremental Term~~ after giving effect thereto, such participations and Revolving Facility Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate 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 Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be ~~permitted notwithstanding~~ ratable as contemplated hereby. (i) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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 Agreement or any other Loan Document (including this Section ~~2.15~~2.20), 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~~ aggregate amount of Extended Term Loans, Extended Revolving Facility Commitments and Extended Synthetic L/C Commitments will not be included in the ~~relevant series~~ calculation of ~~Term Loans and/or Commitments being extended~~the Incremental Amount, ~~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~~ no Extended Term Loan, Extended Revolving Facility Commitment or Extended Synthetic L/C Commitment is required to be in any minimum amount of or any ~~Incremental Term Loans does not exceed the sum of~~ minimum increment, (xiii) ~~the principal amount of~~ except as set forth in the applicable ~~Term Loans effectively being extended~~Extension Offer, ~~repriced~~ any Extending Lender may extend all 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 portion of ~~such Incremental~~ its Term Loans., Revolving Facility Commitm

Appears in 1 contract

Sources: Credit Agreement (Realogy Holdings Corp.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time 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”)~~time, ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ establish Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to an exceed the Incremental ~~Facility on~~ Amount available at the ~~date~~ time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the ~~incurrence thereof shall not exceed~~Borrower, ~~when taken together with any~~ 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 (1) any Permitted ~~Pari Passu Notes~~Business Acquisition, ~~Permitted Pari Passu Loans~~ New Project or ~~Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date~~any other acquisition or other Investment that is not prohibited by this Agreement, ~~(x) the then-remaining Fixed Incremental Amount~~ as of the date the definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or other Investment is entered into or (2) any prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement of ~~incurrence plus~~ Indebtedness for which notice has been (yor is required to be) delivered in advance of such prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement, as of the date such notice is delivered) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the ~~satisfaction~~ approval of the ~~applicable Incurrence-Based~~ 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 Revolving Facility ~~Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date,~~ Lender is a Revolving Facility Lender. Such notice shall set forth (vii) 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 amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ established (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the 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 Increasebecome effective, and (Eiii) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans, or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental Term ~~Loans and Incremental Revolving~~ B 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 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, (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 “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional Term B Loans shall have ~~been delivered~~ the same terms as the Term B Loans; (ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the ~~Administrative Agent~~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 subject to clause (vii) below); (iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date; provided that the limitations set forth in this clause (iii)(A) and clause (iv) below shall not apply to Other Term Loans incurred in reliance on this proviso to this clause (iii)(A) (x) ~~all fees required~~ in an aggregate principal amount outstanding not to exceed the Permitted Inside Maturity Exclusion, (y) in the form of customary bridge loans or similar financing arrangements, the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, in each case, to a date that would satisfy the requirements of this clause (iii)(A) and clause (iv) below, or (z) in the form of term A 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 ~~paid~~ determined by the Borrower and the Incremental Term Lenders in ~~connection therewith~~ their sole discretion), such Other Term Loans shall have terms, taken as a whole, that are either (x) 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 B Loans (except for covenants or other provisions applicable only to periods after the latest Term Facility Maturity Date in effect at the time such Other Term Loans are incurred) (as determined by the Borrower in good faith) (or, at the option of the Borrower, if more restrictive, the Loan Documents are amended to contain such ~~effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent~~ more restrictive terms to the extent ~~it served~~ required to satisfy the foregoing standard for so long as ~~the arranger for the Incremental Commitments~~such more restrictive terms are in effect), (y) ~~all Incremental Commitment Requirements are satisfied, and~~ reasonably satisfactory to the Administrative Agent or (z) ~~all other conditions~~ consistent with then-current market terms (as determined by the Borrower in good faith); (iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans (subject to the exceptions in the proviso set forth in clause (iii) above); (v) the Revolving Facility Loans incurred pursuant to clause (a) of this Section ~~2.15~~ 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 Revolving Facility Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Revolving Facility Loans shall be subject to a Permitted Junior Intercreditor Agreement); (vi) (A) the Revolving Facility Loans shall have ~~been satisfied. The~~ no amortization and (B) except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions, ranking as to security, financial covenants or any operational or other terms that are customarily specific to revolving credit facilities (as determined by the Borrower in good faith) (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Revolving Facility Loans shall have terms taken as a whole, that are either (x) 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 B Loans or an existing Class of Revolving Facility Commitments (except for covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date in effect at the time such Revolving Facility Loans are incurred) (as determined by the Borrower in good faith) (or, at the option of the Borrower, if more restrictive, the Loan Documents are amended to contain such more restrictive terms to the extent required to satisfy the foregoing standard for so long as such more restrictive terms are in effect), (y) reasonably satisfactory to the Administrative Agent or (z) consistent with then-current market terms (as determined by the Borrower in good faith); (vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall ~~promptly notify each Lender as~~ not exceed the All-in Yield applicable to the ~~effectiveness~~ Term B Loans on the Closing Date, except that the All-in Yield in respect of ~~each Incremental Amendment~~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 1.00%, ~~and~~ or if it does so exceed such All-in Yield by more than 1.00% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “Term 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 1.00%; provided that, to the 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 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 (x) any Subject Term Loan that is established for purposes of a Permitted Business Acquisition, New Project or other acquisition or Investment permitted hereunder, (y) any Subject Term Loan that has a maturity date that is at least one year after the Term B Facility Maturity Date or (z) any Subject Term Loan that is initially incurred under clause (i) ~~Schedule 2.01~~ or (iii) of the definition of “Incremental Amount”; (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 Term B Loans in any mandatory prepayment hereunder; and (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 and any operational or other terms that are customarily specific to revolving credit facilities (as determined by the Borrower in good faith) as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document as provided for in Section 9.08(e) and any such collateral and other documentation shall be deemed ~~modified to reflect~~ “Loan Documents” hereunder and may be memorialized in writing by the ~~revised Incremental Commitments of~~ Administrative Agent and the ~~affected Lenders~~ Borrower and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the ~~case may be~~extent required by the relevant Incremental Assumption Agreement, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the conditions set forth in clause (d) of Section 4.01 shall be ~~separate~~ satisfied and ~~distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of~~ 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) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing (1) any Permitted Business Acquisition, New Project or any other acquisition or other Investment that is not prohibited by this Agreement or (2) any prepayment, reduction, repurchase, redemption, defeasance, satisfaction and discharge or other retirement of Indebtedness for which notice has been (or is required to ~~be unreasonably withheld~~be) delivered in advance of such prepayment, ~~delayed~~ reduction, repurchase, redemption, defeasance, satisfaction and discharge or ~~conditioned~~other retirement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the ~~parties~~ Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent 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 or supplements to the Security Documents, which, in the case of such amendments or supplements may be delivered on a ~~given~~ post-closing basis to the extent permitted by the applicable Incremental ~~Amendment~~ Assumption Agreement, the relevant Security Documents or hereunder) as the Administrative Agent may ~~specify therein~~ reasonably request to assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term ~~Loans add such Incremental Term~~ Benchmark Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~ 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 ~~amount~~ case 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 an offer to the ~~establishment and incurrence of such Incremental Term Loans.~~Lenders under any

Appears in 1 contract

Sources: Term Loan Credit Agreement (QXO, Inc.)

Incremental Commitments. (a) After the Closing Date has occurred, any Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans ~~incurred~~ are funded or Incremental Revolving Facility Commitments are established (except as set forth in ~~connection therewith, each, an “~~clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term ~~Loan” and~~Lenders and/or Incremental Revolving Facility Lenders (which, ~~collectively~~in each case, ~~the “Incremental Term Loans” and, collectively with~~ may include any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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; existing Lender (it being understood ~~and agreed, however,~~ that ~~(i)~~ no Lender shall be obligated to provide an any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but shall be required to be persons which would qualify as assignees of a ~~result of any~~ Lender in accordance with Section 9.04) willing to provide such ~~request by Borrower~~Incremental Term Loans and/or Incremental Revolving Facility Commitments, ~~(ii) any Lender (including any Eligible Transferee who will become a Lender)~~ as the case may ~~so provide an Incremental Facility without the consent of any other Lender~~be, ~~(iii)~~ in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be ~~denominated in Dollars~~ 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 (which approvals shall not be unreasonably withheld, conditioned or ~~an Alternative Currency,~~ delayed). Such notice shall set forth (ivi) 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 and/or Incremental Revolving Facility Commitments being ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a ~~new Tranche~~ minimum amount of the Dollar Equivalent of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (~~i.e., not~~ ii) the ~~same as any existing Tranche of Incremental Term Loans,~~ date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become 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 shall together with any then outstanding Initial Euro Term Loans or ~~other~~ Tranche B-1 Dollar Term Loans, as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-1 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 Initial Term B Loans (“Other Incremental Term Loans”)~~, unless~~ . (b) The applicable Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the ~~requirements~~ Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of ~~Section 2.15(c) are satisfied), which designation~~ such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall ~~be set forth in~~ specify the terms of the applicable Incremental ~~Amendment,~~ Term Loans and/or Incremental Revolving Facility Commitments; provided that: (~~viii~~i) if any (x) commitments to ~~be incurred as a new Tranche of Incremental~~ make additional Initial Term ~~Loans, such Incremental Term~~ B Loans shall have the same terms as ~~each other Tranche of~~ the Initialapplicable Term ~~Loans as in effect immediately prior to the effectiveness~~ B Loans, and shall form part of the ~~relevant~~ same Class of Initialthe applicable Term B Loans and (y) 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 each new Tranche of 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 Revolving Facility Commitments shall have ~~(a) a Maturity Date of no earlier than~~ the ~~Term Loans Latest Maturity Date~~ same terms as of the ~~date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of~~ then outstanding ~~Term Loans~~ 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 ~~longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest~~ latest Revolving Facility Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ 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 Loans or, at the option of the applicable Borrower, shall rank junior in right of security with the Initial Term B Loans (provided that, if such Other Incremental Term Loans rank junior in right of security with the Initial 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 subject to clause (v) below), (iii) (x) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the 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 ~~effect~~ 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 ~~the effective date of the Revolving Commitment Increase (immediately~~ or prior to the ~~establishment~~ latest Revolving Facility Maturity Date and (z) 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 ~~Revolving Commitment Increase~~Other Incremental Term Loans shall have (1) the same terms as the Initial 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 Loan 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 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), (EII) 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 (iv))), (v) 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 ~~Revolving Commitment Increases~~increase, the ~~Pro Rata Percentage~~ Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the ~~Revolving Commitments~~ 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 ~~each Lender may be adjusted to give effect~~ the Term Yield Differential to the ~~total Revolving Commitment as increased by~~ extent 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 floor is greater than the ~~then latest maturing Tranche~~ Eurocurrency Rate in effect for an Interest Period of ~~outstanding Revolving Loans~~three months’ duration at such time, ~~(xi) any Tranche of~~ and, with respect to such excess, 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 “floor” applicable to the ~~existing Revolving~~ 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) than the Initial Term B Loans in any mandatory prepayment hereunder, (vii) there shall be no borrower (other than a Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or ~~as are otherwise reasonably satisfactory to the Administrative Agent,~~ Incremental Revolving Facility Commitments, (~~xii~~viii) ~~all~~ Other 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 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 Facility Commitments shall not be secured by any ~~assets that do not constitute Collateral for~~ asset of Parent or its Subsidiaries other than the ~~outstanding Loans or~~ Collateral; and (ix) the Parent shall be ~~guaranteed by~~ in Pro Forma Compliance with the Financial Covenants (if then applicable). Each party hereto hereby agrees that, upon the effectiveness of any ~~guarantors that are not Credit Parties~~Incremental Assumption Agreement, ~~(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~~ this Agreement shall be amended to the ~~satisfaction~~ extent (but only to the extent) necessary to reflect the existence and terms of the ~~relevant conditions set forth in this Agreement, make~~ Incremental Term Loan Commitments and/or Incremental Revolving ~~Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment~~ Facility Commitments evidenced thereby as provided for in Section ~~2.01(c) (with respect~~ 9.08(e). Any amendment to ~~Incremental Term Loans)~~ this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and ~~applicable Incremental Amendment (with respect to Incremental Revolving Loans)~~ any such collateral and ~~such Loans~~ other documentation shall ~~thereafter~~ be deemed to “Loan Documents” hereunder and may 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, memorialized in writing by the Administrative Agent ~~and each such Lender (~~with the Parent’s consent ~~of the Administrative Agent, each Issuing Bank and the Swingline Lender~~ (not to be unreasonably ~~withheld~~ withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or ~~delayed~~Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall 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 ~~consent~~tranche of Incremental Term Loans agree, ~~if any, would be required under Section 13.04(b~~the foregoing clause (i) ~~for an assignment~~ and clause (ix) of ~~Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment~~ the preceding clause (~~each, an “Incremental Lender”~~b) 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~~ tested at the time of the execution of the acquisition agreement related to such ~~effectiveness~~ Limited Condition Acquisition (provided, that such Incremental Term Lenders shall ~~have been paid~~ not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (~~including, without limitation, any agreed upon upfront or arrangement fees owing to~~ ii) the ~~Administrative Agent to~~ representations and warranties of the ~~extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions~~ Borrowers set forth in this ~~Section 2.15~~ Agreement shall be true and correct in all material respects (other 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 (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of 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 result of a failure of such representations to be accurate; and (iii) the Administrative Agent shall have ~~been satisfied~~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. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment,~~ Assumption Agreement. (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and ~~at such time,~~ all action as may be reasonably necessary to ensure that (i) ~~Schedule 2.01 shall be deemed modified to reflect the revised~~ all Incremental ~~Commitments~~ Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the ~~affected Lenders~~ outstanding applicable Class of Term Loans on a pro rata basis, and (ii) ~~to the extent requested by any~~ all Revolving Facility Loans in respect of Incremental ~~Lender~~Revolving Facility Commitments, ~~Term Notes or Revolving Notes~~when originally made, ~~as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be~~ are included in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of ~~outstanding Term Loans of~~ the applicable ~~Tranche on a pro rata basis (based on the relative sizes~~ Class of ~~the various~~ outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Parent agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental~~ Term SOFR Loans ~~add such Incremental Term~~ or Eurocurrency Rate Loans to ~~the then outstanding Borrowings of LIBO Rate~~ ABR 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 Rate 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 reasonably required by ~~any~~ the Administrative Agent of to effect the ~~LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~foregoing. (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 (Jazz Pharmaceuticals PLC)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, by written notice to the Administrative Agent from time to ~~time~~ time, 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments ~~(such Term Loans incurred in connection therewith, each, an “~~and/or Incremental ~~Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any~~ Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 CommitmentCommitments, as applicable, ~~pursuant~~ in an amount not to exceed 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 Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility ~~on the date of the incurrence thereof~~ Commitment shall ~~not exceed~~be subject, 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~~ extent the same would be required for an assignment under Section 9.04, to the approval 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~~ the 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 ~~provided thereunder~~ requested (which ~~Tranche~~ shall be in minimum increments of $5,000,000 and a ~~new Tranche (i.e.~~minimum amount of $10,000,000, ~~not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments~~ or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the ~~effectiveness of the relevant~~ remaining 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, ~~taken as a whole~~such lesser amount approved by the Administrative Agent), ~~that are not materially more favorable to~~ (ii) the ~~lenders providing~~ date on which such Incremental Term ~~Loans than the provisions applicable~~ Loan Commitments and/or Incremental Revolving Facility Commitments are requested to ~~the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent~~become effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms ~~and provisions of any Revolving Commitment Increase shall be identical to~~ as the Initial Revolving Loans ~~and~~ 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 ~~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~~ “Other 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 (Eiv) in the ~~Revolving Commitment Increase shall rank pari passu in right~~ case of ~~payment and security with the Initial Revolving Loans~~Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) ~~the~~ commitments to make term loans with terms identical to 2021 Term Loans or (y) commitments to make term loans with pricing, maturity, ~~interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ~~amortization, 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 participation in mandatory prepayments and/or other terms ~~that may differ~~ different 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 satisfactory to the Administrative Agent, (xii) all Incremental 2021 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 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, (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 “Other 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~~ The Borrower and each ~~such~~ Incremental Term Lender ~~(with the consent of the Administrative Agent, each Issuing Bank and the Swingline~~ and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent 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~~ Assumption Agreement and such other documentation as the Administrative Agent shall ~~not require the consent of any other Lender), with the effectiveness of~~ reasonably specify to evidence the Incremental Term Loan Commitment ~~provided therein to occur on the date on which (w) a fully executed copy~~ of such Incremental ~~Amendment~~ Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional 2021 Term Loans and/or additional Initial Revolving Loans shall have ~~been delivered~~ the same terms as the 2021 Term 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 ~~Administrative Agent~~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) ~~all fees required~~ in right of security with the Term Loans and Initial Revolving Loans, such Other Term 114 Doc#: US1:15347125v11 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 ~~paid in connection therewith~~ 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 ~~effectiveness shall have been paid~~ Other Term Loans (~~including~~except for (x) customary bridge loans, ~~without limitation, any agreed upon upfront~~ (y) Customary Term A Loans or ~~arrangement fees owing~~ (z) Other Term Loans in an aggregate amount not to exceed the ~~Administrative Agent to the extent it served as the arranger for the Incremental Commitments~~Inside Maturity Exception Amount (clauses (x), (y) ~~all Incremental Commitment Requirements are satisfied,~~ and (z), collectively, the “Inside Maturity Debt”)) ~~all~~ shall be 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 ~~conditions set forth~~ clauses of this proviso, be determined by 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 ~~2.15~~ 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or unsecured (provided, that if such Other Revolving Loans rank junior (x) in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be 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 customary market terms at the time of issuance thereof), (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 other clauses of this proviso, be determined by the Borrower and the applicable Incremental Revolving Facility Lenders in their sole discretion), shall have ~~been satisfied~~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 Other Revolving Loans than those applicable to the Initial Revolving Loans (in each case, except for covenants or other provisions (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Other Revolving Loans are incurred or (B) that are conformed (or added) to this Agreement 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 the Applicable Margin (or the “LIBORTerm 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%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBORTerm SOFR floor” being applicable to such Other Term Loans, 115 Doc#: US1:15347125v11 (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 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. ~~The Administrative Agent shall promptly notify each Lender as to~~ Each party hereto hereby agrees that, upon the effectiveness of ~~each~~ any Incremental ~~Amendment~~Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and at 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 necessary to effect the provisions of this Section 2.21 and any such ~~time, (i) Schedule 2.01~~ collateral and other documentation shall be deemed ~~modified~~ “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to ~~reflect the revised Incremental Commitments of the affected Lenders~~ be unreasonably withheld) and ~~(ii)~~ furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother parties hereto. (c) Notwithstanding ~~anything to~~ the ~~contrary contained above in this Section 2.15~~foregoing, ~~the~~ no Incremental Term Loan ~~Commitments provided by an Incremental Lender~~ Commitment or Incremental ~~Lenders~~Revolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (i) subject to the ~~case may be~~LCT Provisions, ~~pursuant~~ (x) with respect to ~~each~~ any Incremental ~~Amendment shall constitute~~ Term Loan Commitment or Incremental Revolving Facility Commitment established to finance a ~~new Tranche, which shall be separate and distinct from the existing Tranches pursuant to~~ Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement~~; provided that~~, no Specified Event of Default shall have occurred or be continuing or would result therefrom and (y) with ~~the consent~~ respect to any other Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, no Event of Default shall have occurred and be continuing or would result therefrom and (ii) 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 filings (~~not~~ to the extent required to be ~~unreasonably withheld~~delivered on the Closing Date pursuant to Section 4.02 and Section 5.10) as the Administrative Agent may reasonably request, ~~delayed or conditioned~~subject to Section 5.10(g), ~~the parties~~ to ~~a given Incremental Amendment may specify therein~~ assure that the Incremental Term Loans ~~made pursuant thereto shall constitute part of~~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 116 Doc#: US1:15347125v11 (d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be ~~added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:~~ reasonably necessary to ensure that (i) ~~the~~ all Incremental Term Loans ~~to be made pursuant to such Incremental Amendment shall have~~ (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the ~~same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche~~ outstanding applicable Class 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata ~~basis~~ basis, and (~~based on the relative sizes~~ 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 ~~various~~ applicable Class of outstanding ~~Borrowings), so that each Lender holding Term~~ Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. ~~To the extent the provisions~~ The Borrower agrees that Section 2.16 shall apply to any conversion of ~~the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term~~ EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the ~~then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that~~ Administrative Agent to effect the ~~effect thereof may result in such new Incremental Term Loans having irregular Interest Periods~~ foregoing. (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement~~. All determinations by any the Administrative Agent of the LIBO Rate~~, ~~in such circumstances pursuant~~ including Section 2.18(c) (which provisions shall not be applicable to ~~the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.~~ clauses (de) 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: through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders ~~with respect to the relevant series~~ of any Class of Term Loans and/or ~~Commitments being extended~~Revolving Facility Commitments, ~~repriced or refinanced are offered the opportunity to participate in such transaction~~ 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 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) ~~and~~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 117 Doc#: US1:15347125v11 (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 Extended Term Loans are incurred or (B) that are conformed (or added) to this Agreement for the benefit of the then-existing Term Loans (which may be added by an amendment to this Agreement entered into between only the Borrower and the relevant Extending Lenders, without the consent of the Administrative Agent or any other Secured Party hereto), or (II) that are otherwise reasonably acceptable to the Administrative Agent), (ii) the ~~amount~~ final maturity date of any ~~Incremental~~ Extended Term Loans ~~does not exceed~~ shall be no earlier than the ~~sum~~ Latest Maturity Date in effect on the date 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.incurren

Appears in 1 contract

Sources: Credit Agreement (Driven Brands Holdings Inc.)

Incremental Commitments. (a) Borrower may at any time and from time to time 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”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ 2025 Tranche B-2 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding ~~Initial~~ 2025 Tranche B-2 Term Loans shall be increased as of such date (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~~ 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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~~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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~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 ~~LIBO Rate~~ 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 ~~LIBO Rate~~ 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 any the Administrative Agent of ~~the LIBO Rate~~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. (a) Borrower may at any time and from time to time 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”)Each Incremental Lender, ~~one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or~~ effective upon the Incremental ~~Term Loan Commitments (such Term Loans incurred in connection therewith~~Facility Effective Date, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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, hereby agrees that (i) no in respect of each Incremental Lender ~~shall be obligated~~ that is a Lender immediately prior to ~~provide an~~ the 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term LoansEffective Date, such ~~Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as~~ Lender's Commitment in effect immediately prior to the ~~effectiveness~~ Incremental Facility Effective Date shall be increased by the amount set forth next to such Lender's name on Schedule I hereto and (ii) in respect of each Incremental Lender that is not a Lender immediately prior to the Incremental Facility Effective Date (each, an “Augmenting Lender”), such Augmenting Lender's Commitment shall be the amount set forth next to such Augmenting Lender's name on Schedule I hereto. All such Incremental Commitments shall constitute “Commitments” and all Incremental Lenders shall constitute “Lenders”, in each case for all purposes of the ~~relevant~~ Credit Agreement and the other Loan Documents. (b) From and after the Incremental ~~Amendment~~Facility Effective Date, ~~except as~~ each Augmenting Lender shall be a party to ~~purpose (which is~~ the Credit Agreement, entitled to all rights, powers and privileges, and subject to all obligations, of a Lender thereunder, including without limitation (i) the ~~requirements~~ right to receive all payments made by the Borrowers in respect of the ~~preceding clause~~ Loans made by such Augmenting Lender, whether on account of principal, interest, fees, indemnities in respect of claims arising after the Incremental Facility Effective Date, increased costs, additional amounts or otherwise, (~~vi)~~ii) the right to vote and ~~optional prepayment provisions~~ to instruct the Administrative Agent under the Credit Agreement according to its Applicable Percentage, (iii) the right to set‑off and ~~mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of 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~~ appropriate and apply deposits of the ~~Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that~~ Borrowers as set forth in the Credit Agreement and (Iiv) the ~~maturity~~ right to receive notices, requests, demands and ~~amortization~~ other communications. (c) Each Augmenting Lender (i) confirms that it has received a copy of ~~such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have~~ each Loan Document (~~a) a Maturity Date of no earlier~~ other than the ~~Term Loans Latest Maturity Date as~~ Fee Letter), together with copies of the ~~date such Indebtedness was incurred~~ most recent financial statements delivered by El Paso pursuant to Sections 5.04(a) and (b) of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assumption Agreement and to become a ~~Weighted Average Life to Maturity of no less than~~ Lender under the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term LoansCredit Agreement, (IIii) ~~the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from~~ agrees that ~~applicable to the then outstanding Tranches of Term Loans~~it will, 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 denominated in Dollars, if the 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 (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 independently 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ixiii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (v) represents and ~~provisions of any Revolving Commitment Increase shall be identical~~ warrants to the ~~Initial Revolving Loans~~ Administrative Agent that it has duly executed and delivered this Assumption Agreement and that the ~~Closing Date Revolving Commitments~~execution, ~~and, for purposes~~ delivery and performance by such Augmenting Lender of this Assumption Agreement have been duly authorized by all necessary action (corporate or otherwise) and (vi) agrees that it will deliver to the Administrative Agent an Administrative Questionnaire in the form of Exhibit A to the Credit Agreement. (d) In order to effectuate the increase in the Total Commitment contemplated hereby, each of the parties hereto hereby agrees that, on the Incremental Facility Effective Date, each Incremental Lender shall purchase by assignment from the other ~~Credit Documents, all Revolving Loans made under~~ Lenders (and such other Lenders shall assign to the ~~Revolving Commitment Increase shall be deemed to be Initial Revolving~~ Incremental Lenders) such portion of the outstanding Loans (including, without limitation, any Loans deemed made pursuant to Section 2.02(f) of the ~~following: (A) the rate of interest applicable~~ Credit Agreement), if any, owing to ~~the Revolving Commitment Increase~~ them as shall be designated by the ~~same as the rate of interest applicable to the Initial Revolving Loans~~Administrative Agent, ~~(B) unused line fees~~such that, 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 all such ~~Revolving Commitment Increases~~purchases and assignments, the ~~Pro Rata~~ outstanding Loans owing to each Lender shall equal such Lender's Applicable Percentage of the ~~Revolving Commitments~~ aggregate amount of ~~each Lender may~~ Loans owing to all Lenders. Any prepayment described in this paragraph (d) shall be ~~adjusted~~ subject 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 Section 2.14 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 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 Security~~ Agreement, ~~and guaranteed under each relevant Guaranty, on a pari passu basis~~ but shall otherwise be without premium or penalty. In connection 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, (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 Assumption 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 hereby waives the processing and ~~each such Lender (with the consent~~ recordation fee of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent 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 $3,500 otherwise 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b)~~10.04(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 Rate 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 Rate 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 Credit Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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: Incremental Facility Assumption Agreement (El Paso Electric Co /Tx/)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (i) one or more ~~Lenders~~ new term loan commitments (~~or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a~~ the “~~Revolving Commitment Increase~~New Term Loan Commitments”), (ii) one or more additional ~~Tranches~~ tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “~~Additional/Replacement~~ Revolving ~~Commitment”) or Incremental~~ Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. (b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans ~~incurred in connection therewith~~and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to ~~Borrower~~ this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and ~~conditions contained in this Agreement and in~~ provisions that differ from Term Loans outstanding on the ~~relevant Incremental Amendment, provide commitments and/or make~~ date on which such New Term Loans ~~pursuant thereto; it being understood and agreed, however, that (i) no Lender~~ are made shall be ~~obligated to provide an Incremental Facility~~ designated as a ~~result~~ separate Class of ~~any such request by Borrower~~Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, ~~(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~~Lenders, 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 and the Borrower, to effect the provisions of this Section 2.17. (c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) ~~each Incremental Facility~~ if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be ~~denominated in Dollars or an Alternative Currency~~increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the ~~amount~~ same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments 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 $10,000,000Class are effective, (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~~foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. (d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-~~Based Incremental Facility Test~~existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any ~~Incurrence-Based Incremental Amount~~ related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be ~~incurred thereunder on~~ implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or 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 other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt any ~~Tranche~~ “MFN” protection applicable to such Additional Revolving Credit Commitments. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental ~~Term Loan Commitments being provided thereunder (which Tranche shall~~ Amendment, are to be ~~a new Tranche (i.e., not~~ of the same ~~as any existing Tranche~~ Class of ~~Incremental~~ an Existing Class of Term Loans, ~~Incremental~~ when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan ~~Commitments~~ is made, or ~~other~~ by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans), ~~unless~~ then the ~~requirements of Section 2.15(c) are satisfied), which designation~~ interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (~~viii~~i) if to ~~be incurred as a new Tranche of Incremental~~ the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such ~~Incremental~~ New Term Loans shall ~~have~~ be ratably increased by the ~~same terms as each other Tranche~~ aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect ~~immediately~~ to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the ~~relevant Incremental Amendment~~proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), ~~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 each new Tranche of Incremental Term Loans~~ shall be ~~entitled to share in mandatory prepayments~~ accompanied by accrued interest on ~~a ratable basis with~~ the ~~other Tranches of Term~~ Revolving Credit Loans ~~(unless the holders of the Incremental Term Loans of~~ being prepaid and any ~~Tranche agree to take a lesser share of~~ costs incurred by 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (Lender 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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 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 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, (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 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 satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~promptly notify each Lender as~~ not apply 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding ~~sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto~~sentence. (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 (WideOpenWest Finance, LLC)

Incremental Commitments. (a) ~~Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide~~ Each Incremental Lender that is an ~~increase in Revolving Commitments (a “Revolving Commitment Increase”)~~Increasing Lender hereby agrees that, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, on the ~~“Incremental Term Loans” and, collectively with any Revolving Commitment~~ Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) 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 Effective Date (i) ~~no Lender shall~~ its Revolver Commitment will be ~~obligated to provide an~~ increased by the amount of its Incremental ~~Facility~~ Commitment set forth on Annex B attached hereto effective as ~~a result~~ of ~~any such request by Borrower~~the Increase Effective Date (as defined below), (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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding 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, 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 denominated in Dollars, if the 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 (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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the 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~~ increase, its total Revolver Commitment ~~Increases,~~ will be the ~~Pro Rata Percentage~~ amount 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~~its “Total Revolver Commitment” set forth on Annex B attached hereto, and (Eiii) ~~the Revolving Commitment Increase~~ it 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 continue to be a Lender 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 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 Amended Credit ~~Documents and shall be secured by the 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, (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 Subject to the ~~time~~ occurrence of the ~~provision of~~ Increase Effective Date and to the terms and conditions set forth herein, (i) each Incremental ~~Commitments~~ Lender that is an Additional Lender hereby agrees that it shall become a party to the Credit Agreement as a Lender, pursuant to this Amendment, and shall constitute a Lender, and (ii) each of the parties hereto agree that such Lender shall have the rights and obligations of a Lender under the Credit Agreement and under the other applicable Loan Documents; provided, that each of the parties hereto agree that any such Additional Lender will have the benefit of Section ~~2.15~~9.3 of the Credit Agreement as a Lender, ~~Borrower~~mutatis mutandis, from and after the ~~Administrative Agent~~ date hereof whether or not the Increase Effective Date occurs. (c) On the Increase Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Pro Rata Share after giving effect to the addition of such Incremental Commitments to the Revolver Commitments and (ii) each Incremental Commitment shall be deemed, for all purposes, a Revolver Commitment and each loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan. (d) Each Incremental Lender (~~with the consent~~ i) confirms that it has received a copy of the ~~Administrative Agent, each Issuing Bank~~ Amended Credit Agreement and the ~~Swingline~~ other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment, (ii) agrees that it will, independently and without reliance upon Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement, (iii) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be performed by it as a Lender (~~not~~ which, in the case of each Additional Lender, will be subject to ~~be unreasonably withheld or delayed~~the occurrence of the Increase Effective Date), (v) confirms that it is an Eligible Transferee, and (vi) to the extent it is an Additional Lender, (A) agrees, subject to the occurrence of the Increase Effective Date, that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and (B) certifies that it has delivered to the Par Borrower the forms prescribed by the Internal Revenue Service of the United States certifying as to its status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to it under the Amended Credit Agreement or such ~~consent~~other documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty. (e) Each Lender party hereto (including, ~~if any~~for the avoidance of doubt, ~~would~~ each undersigned Lender that is not an Incremental Lender) hereby agrees that the Borrower shall not be required to make any Funding Losses payments to such Lender which may otherwise be required under Section ~~13.04(b~~2.12(b)(ii) 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~~ Credit Agreement solely resulting from the increase in the Revolver Commitments effected pursuant to ~~occur on the date on which (w) a fully executed copy~~ this Amendment; provided, that each Lender’s waiver 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 Funding Losses payments 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~~1.1(e) is a limited, one-time waiver, and ~~at such time~~nothing contained herein shall obligate Agent or any Lender to grant any additional or future waiver with respect to, ~~(i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments~~ or in connection with, any provision of the ~~affected Lenders and (ii) to the extent requested by~~ Amended Credit Agreement or any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 Lenderother Loan Document. (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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such 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 Rate 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 Rate 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 any the Administrative Agent of the LIBO Rate, 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: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)

Appears in 1 contract

Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)

Incremental Commitments. (a) The Borrower ~~may~~ shall have the right to request at any time and from time to time ~~request~~ that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees ~~who~~ and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the 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~~ that: (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the 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,~~ U.S. Dollars; (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,~~ 25,000,000; (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~~Loans, Permitted Pari Passu ~~Loans~~ Notes or Permitted Junior Debt pursuant to Section ~~10.04(xxvii)(1~~10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar 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 the Borrower may be used for any purpose not prohibited under this Agreement, ; (vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ; (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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,~~ as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the ~~Term Loans~~ Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to ~~Maturity; provided~~Maturity (in each case of the foregoing clauses (a) and (b), ~~however~~excluding for this purpose (x) interim loan financings that provide for automatic rollover, ~~that Extendable Bridge Loans may have a maturity date earlier than~~ subject to customary conditions, to Indebtedness otherwise meeting the ~~Latest~~ requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of ~~all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans~~incurrence), (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, 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 denominated in Dollars,~~ that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding ~~Initial~~ Term B-2 Loans by more than 0.50% per annum, the Applicable Margins for ~~such~~ all then outstanding ~~Initial~~ Term B-2 Loans shall be increased as of such date (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 be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative ~~Agent~~Agent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-2 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans); (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the ~~Initial~~ 2023 Revolving Loans and the ~~Closing Date~~ 2023 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~~ 2023 Revolving ~~Loans (~~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~~ 2023 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 Applicable Commitment Fee ~~Rate, LC Participation Fee rate and Fronting Fee rate~~ Rate applicable to the ~~Initial~~ 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the ~~Initial~~ 2023 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~~ Revolving Commitments shall be reduced based on each Lender’s 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~~Percentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the ~~Initial~~ 2023 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~~ shall not ~~materially more favorable~~ require any scheduled amortization or mandatory commitment reduction prior to the ~~Lenders providing such~~ Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments ~~than~~ and shall be on substantially the ~~provisions~~ same terms as those applicable to the ~~existing~~ 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or ~~as are~~ otherwise reasonably ~~satisfactory~~ acceptable to the Administrative Agent, ); (xii) all Incremental Term ~~Loans and Incremental Revolving~~ Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and ~~shall~~ shall, to the extent secured, be secured by the Security ~~Agreement~~Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty ~~Agreement~~ and shall ~~not~~ be secured by ~~any assets that do not constitute~~ only the Collateral ~~for~~ securing the ~~outstanding Loans or be guaranteed by any guarantors that are not Credit Parties,~~ Obligations hereunder; (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~~ Commitment Increases, Additional/Replacement Revolving Commitments 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~~ 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, the 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 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the 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),~~ that 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~~ 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section ~~2.09~~2.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section ~~2.01(b~~2.01(c)) 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 Rate~~ 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 Rate~~ 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 ~~any~~ the Administrative Agent of the ~~LIBO Rate,~~ Adjusted 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 (Iridium Communications Inc.)

Incremental Commitments. (a) The Borrower ~~may at any time and~~ may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (i) one or more ~~Lenders~~ new term loan commitments (~~or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a~~ the “~~Revolving Commitment Increase~~New Term Loan Commitments”), (ii) one or more additional ~~Tranches~~ tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “~~Additional/Replacement~~ Revolving ~~Commitment”) or Incremental~~ Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. (b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans ~~incurred in connection therewith~~and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to ~~Borrower~~ this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and ~~conditions contained in this Agreement and in~~ provisions that differ from Term Loans outstanding on the ~~relevant Incremental Amendment, provide commitments and/or make~~ date on which such New Term Loans ~~pursuant thereto; it being understood and agreed, however, that (i) no Lender~~ are made shall be ~~obligated to provide an Incremental Facility~~ designated as a ~~result~~ separate Class of ~~any such request by Borrower~~Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, ~~(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~~Lenders, 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 and the Borrower, to effect the provisions of this Section 2.17. (c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (~~iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv~~i) the ~~amount~~ Maturity Date 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 New Term Loans 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)~~ be earlier than the then-~~remaining Fixed Incremental Amount as~~ existing Latest Maturity Date with respect to any Existing Class 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 provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, ~~Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c~~(ii) ~~are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental~~ any New Term Loans shall not have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the 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 each new Tranche of 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 Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a shorter Weighted Average Life ~~to Maturity of no less~~ than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans 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 shorter than the then longest remaining Weighted Average Life to Maturity of any ~~then~~ then-outstanding Term Loans, (IIiii) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, 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 denominated in Dollars, if the ~~Effective~~ Initial Yield ~~for~~ on any ~~such Incremental~~ New Term Loans exceeds the ~~Effective~~ Initial Yield then ~~applicable to~~ in effect for any ~~then outstanding Initial~~ such Existing Class (or Classes) of Term Loans by more than ~~0.50% per annum~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ~~Margins~~ ABR Margin and the Applicable LIBO Margin then in effect for such ~~then outstanding Initial~~ Class of Term Loans shall automatically be increased ~~as of such date (in accordance with~~ by the ~~requirements~~ Yield Differential, effective upon the making of the ~~definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental~~ New Term Loans and ~~the corresponding Effective Yield on such then outstanding Initial~~ (iv) any New Term Loans ~~is equal to 0.50% (~~shall otherwise have the ~~“MFN Pricing Test”);~~ same terms and ~~(III) such Tranche~~ conditions of ~~Incremental~~ the Term Loans ~~may have~~ then in effect or such 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 to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise conditions reasonably satisfactory to the Administrative Agent~~, (ix) the terms and provisions~~ . On any Increased Amount Date on which any New Term Loan Commitments 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 Class 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 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 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, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shalleffective, subject to the satisfaction of the ~~relevant conditions set forth~~ foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in ~~this Agreement~~an amount equal to its New Term Loan Commitment of such Class, ~~make Incremental Revolving Loans and/or Incremental~~ and (ii) each New Term ~~Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (~~Loan Lender of any Class shall become a Lender hereunder with respect to ~~Incremental~~ the New Term ~~Loans~~Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. (d) ~~and applicable Incremental Amendment~~ Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to ~~Incremental~~ commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such ~~Loans~~ contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall ~~thereafter~~ automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be ~~Incremental~~ deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or ~~Incremental~~ prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (a) The Borrower may, by written notice to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all the Lenders of one or more Classes of Loans and/or Commitments (each Class subject to such a Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments (as defined below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice) (or such shorter periods as are acceptable to the Administrative Agent). Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made. In the event that the aggregate amount of Term Loans ~~under such Tranche, as applicable~~and Revolving Credit Commitments (which, for ~~all purposes~~ the avoidance of ~~this Agreement~~ doubt, shall include any previously extended Extended Revolving Credit Commitments of such tranche) of Accepting Lenders exceeds the amount of Extended Term Loans and Extended Revolving Credit Commitments permitted pursuant to the ~~other~~ Loan Modification Offer, Term Loans and Revolving Credit Commitments subject to Loan Modification Offers shall be converted to Extended Term Loans and Extended Revolving Credit Commitments on a pro rata basis based on the amount of Term Loans and Revolving Credit Commitments included in each Accepting Lender’s acceptance of the Loan Modification Offer or as may be otherwise agreed to in the applicable ~~Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied~~Loan Modification Amendment. (b) ~~At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent~~ The Borrower and each ~~such~~ Accepting 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 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~~ a Loan Modification Agreement and such 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 documentation as the Administrative Agent shall reasonably specify to evidence the ~~extent it served as~~ acceptance of the ~~arranger for~~ Permitted Amendments and the ~~Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied,~~ terms and ~~(z) all other~~ conditions ~~set forth in this Section 2.15 shall have been satisfied~~thereof. 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 the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the 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 LenderLoan Modification Agreement. (c) Notwithstanding anything to the contrary contained ~~above~~ in this ~~Section 2.15~~Agreement, (i) on any date on which any Affected Class is converted to extend the related scheduled maturity date(s) in accordance with paragraph (a) above (an “Extension Date”), (I) in the case of the existing Term Loans of each Accepting Lender of the Affected Class, the ~~Incremental~~ aggregate principal amount of such existing Term ~~Loan Commitments provided~~ Loans shall be deemed reduced by an ~~Incremental~~ amount equal to the aggregate principal amount of Term Loans so converted by such Lender ~~or Incremental Lenders~~on such date (the “Extended Term Loans”), and the Extended Term Loans shall be established as a separate Class of Term Loans from the Affected Class of Term Loans and from any other Existing Class of Term Loans (together with any other Extended Term Loans so established on such date), and (II) in the case ~~may be~~of the existing Revolving Credit Commitments of each Accepting Lender with respect the Affected Class, ~~pursuant to each Incremental Amendment shall constitute a new Tranche, which~~ the aggregate principal amount of such existing Revolving Credit Commitments shall be deemed reduced by an amount equal to the aggregate principal amount of Revolving Credit Commitments so converted by such Lender on such date (the “Extended Revolving Credit Commitments”), and such Extended Revolving Credit Commitments shall be established as a separate ~~and distinct~~ Class of Revolving Credit Commitments from the ~~existing Tranches pursuant~~ Affected Class and from any other Existing Class of Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date) and (ii) if, on any Extension Date, any Revolving Credit Loans of any Accepting Lender are outstanding under the Affected Class of Revolving Credit (d) With respect 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:~~ Extended Revolving Credit Commitments (i) the ~~Incremental Term~~ borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans to under any Extended Revolving Credit Commitments shall 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 remain 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 (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis ~~(based on the relative sizes~~ with any borrowings and repayments of the ~~various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term~~ Existing Revolving Credit Loans of the ~~respective Tranche~~ Affected Class (~~after giving effect~~ the mechanics for which may be implemented through the applicable Loan Modification Amendment and may include technical changes related to the incurrence of such 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 Rate 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 Rate Loans of such Tranche borrowing and ~~which will end on the last day of such Interest Period~~repayment procedures Affected Class), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, 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~~ such Extended Revolving Credit Commitments shall be treated identically to all existing Revolving Credit Commitments 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 Affected Class for purposes of the ~~establishment and incurrence~~ obligations of ~~such Incremental Term Loans.~~a Revolving Credit Lender in respect of Letters of Credit under S

Appears in 1 contract

Sources: Credit Agreement (WideOpenWest, Inc.)

Common use of Incremental Commitments Clause in Contracts