Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. (c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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. (f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (RBS Global Inc)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or (other than upfront fees or original issue discount) and amortization terms identical to an the Term A Loans (which may be part of the applicable existing Class of Term Loans Class) or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term A Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest date specified in clause (a) of the definition of Term Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing the 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 the then-outstanding Class of Term Loans with the longest weighted average life to maturityA 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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Revolving Loans and the Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrowers. 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 in Section 9.08(e10.08(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 amendment “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, 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 BorrowersCompany, (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 and title endorsement bringdownsDocuments) 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) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 thereunder and the application of the proceeds therefrom as if made and applied on such datedate (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 (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of outstanding 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other 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 Credit Commitments). Notwithstanding Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the foregoing, no Permitted Amendment associated Pro Rata Extension Offer; provided that the Borrowers shall become effective unless cooperate with the Administrative AgentAgent 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 extent contrary in Section 2.18(c) (which provisions shall not be applicable to reasonably requested by clause (j) through (o) of this Section 2.21), the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Borrowers may
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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; providedprovided that, that (i) the Other any Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than 91 days after the Latest Revolving Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing Class of Term 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) 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[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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Term Loan and/or Loans and Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrower. 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 in Section 9.08(e10.08(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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower, (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 Restatement Effective Date and such additional customary documents and filings (including amendments to the Vessel Mortgages and other Security Documents and title endorsement bringdownsDocuments) 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 Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datedate (provided that, to the extent such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, at the Borrower's election, the date of determination of Pro Forma Compliance shall be deemed to be the date the definitive agreements for such Permitted Business Acquisition or such other acquisition that is permitted by this Agreement are entered into).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such L▇▇▇▇▇’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s acceptance has been madeLoans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the later of (x) the Term Facility Maturity Date in effect on the date of incurrence for the Class of Term Loans to which such offer relate and (y) 91 days after the Revolving Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 Borrower’s consent (not to be unreasonably withheld or delayed) and only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other 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 Credit Commitments). Notwithstanding Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the foregoing, no Permitted Amendment associated Pro Rata Extension Offer; provided that the Borrower shall become effective unless cooperate with the Administrative AgentAgent 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 extent contrary in Section 2.18(c) (which provisions shall not be applicable to reasonably requested clauses (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative AgentAgent establish one or more tranches of term loans (including one or more “term loan B” tranches) under this Agreement (“Refinancing Term Loans”), shall have received legal opinionsthe Net Proceeds of which are used to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), board resolutions and/or an officer’s certificate consistent with those delivered so long as (i) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof plus amounts used to pay fees and expenses, (ii) if the Revolving Facility Credit Exposure outstanding on the Restatement Refinancing Effective Date under Section 4.02.would exceed the aggregate amount of Revolving Facility Commitments outstanding in each case after giving effect to the termination of such Revolving Facility Commitments, the Borrower shall take one or more actions such that such Revolving Facility Credit Exposure does not exceed such aggregate amount of Revolving Facility Commitments in effect on the Refinancing Effective Da
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, as applicable, in an aggregate 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility CommitmentsCommitment, whether such Incremental Revolving Facility Commitments are to be additional USD Revolving Loan Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization other terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers applicable 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 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 CommitmentsLoans; provided, that that
(i) the final maturity date of any Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with be no earlier than the Term B Loans, A-2 Facility Maturity Date; provided that at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Incremental Term Revolving Loans shall be no earlier than the Latest Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, 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, Date;
(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 A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans with the longest and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity, (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 shorter than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the remaining weighted average life to maturity of any Other Incremental Revolving the Term A-2 Loans shall be but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other Class transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of Revolving the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility Loans; provided(or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Toggle Test, further that the interest rate margin (which Leverage Ratio Toggle Test shall be deemed to include all upfront or similar fees or have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan and upfront fees (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threea four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or if it does so exceed payable to the arranger of such Applicable MarginIncremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, such unless the Applicable Margin shall be with respect to the Term A-2 Facility is increased so that by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in respect right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Other Incremental Term Loan Facilities or Other its affiliates) applicable to any Incremental USD Revolving Loan, as Facility incurred at any time after the case may Restatement Date and taking the form of a new tranche of revolving credit facilities will not be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 10.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, unless the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental USD Revolving Facility and the all-in yield on the USD Revolving Facility minus 0.50% and the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for each Class the USD Revolving Facility;
(B) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Multicurrency Revolving Facility incurred at any time after the Restatement Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Multicurrency Revolving Facility, unless the Applicable Margin with respect to the Multicurrency Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Multicurrency Revolving Facility and the all-in yield on the Multicurrency Revolving Facility minus 0.50% and the Applicable Margin with respect to the USD Revolving Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Multicurrency Revolving Facility;
(viii) Incremental Term Facilities may rank pari passu in right of security with, or junior in right of security to, the other Facilities (but shall in any case be secured (and, in the case of any Incremental Term Facilities ranking junior in right of security to the other Facilities, shall be subject to customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the applicable Borrower), except during a Collateral Suspension Period, when Incremental Term Facilities shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Facilities, in which case, such applicable Incremental Term Facility will be established as a separate facility from the then existing Term Loans;
(ix) to the extent any Incremental Term Facility is structured as an incremental term “b” facility, the applicable Borrower and the Incremental Lenders providing such Incremental Term Facility may agree to add excess cash flow mandatory prepayment provisions for the ratable benefit of the lenders of such tranche of incremental term “b” loans and all other outstanding tranches of Term Loans or Revolving (provided that any such excess cash flow mandatory prepayment provisions shall automatically cease to be operative on and after the date that all such incremental term “b” loans are repaid in full) and/or to eliminate any Financial Covenant; and
(x) the other terms and documentation in respect of any Incremental Facility Loans(including, respectivelywithout limitation, as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (if any)), to the extent not consistent with the Facilities, shall be as agreed between the applicable Borrower and the Lenders providing such Incremental Facility (but in any case subject to the specific limitations and requirements set forth above). Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e)11.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ applicable Borrower’s consent (not to be unreasonably withheld) ), and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of any Lender (other than the applicable Incremental Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.15 unless (i) on the date of such effectiveness, the conditions condition set forth in paragraphs paragraph (b) and (c) of Section 4.01 5.05 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowersapplicable 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 Restatement Date under Section 6 of the Restatement Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption AgreementAgreement in accordance with clause (b)(viii) above, junior to) the existing Term Loans and Revolving Facility Loans Loans; and (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, to the Borrowers extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, (x) the absence of the existence of any Default or Event of Default (other than an Event of Default under Section 8.01(b), (c), (h) or (i)) shall not be a condition to the incurrence of such Incremental Facility and (y) the foregoing clause (i) shall be limited, to the extent agreed with the Incremental Lender(s) providing such Incremental Facility, to customary “specified representations” and those representations of the seller or the target company (as applicable) included in Pro Forma Compliance after giving effect the acquisition agreement related to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and Permitted Business Acquisition or Material Investment that are material to the Loans to be made thereunder and the application interests of the proceeds therefrom Lenders and only to the extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as if made and applied on a result of a breach of such daterepresentations (the “Incremental Facilities Specified Representations”).
(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 and Other Revolving Loans)) in the form of additional Term A-1 Loans, Term A-2 Loans, USD Revolving Facility Loans or Multicurrency Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basisA-1 Loans, and (ii) all Term A-2 Loans, USD Revolving Facility Loans in respect of Incremental or Multicurrency Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally madeas applicable, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree applicable Borrower agrees that Section 2.16 3.05 shall apply to any conversion of Eurocurrency Eurodollar Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Restatement Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Except during a Covenant Relief Period, (it being understood and agreed that during the Covenant Relief Period, the Borrowers may utilize clauses (e) through (o) of this Section 2.21), the Borrowers may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or (other than upfront fees or original issue discount) and amortization terms identical to an the Term A Loans, Term A-1 Loans or, Term A-2 Loans or Term A-3 Loans (which may be part of the applicable existing Class of Term Loans Class) or commitments to make term loans (including “term B” loans) with pricing and amortization terms different from one the Term A Loans, Term A-1 Loans or, Term A-2 Loans or more existing Classes of Term A-3 Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest date specified in clause (a) of the definition of Term Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing the 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 then-outstanding Class of Term A Loans, Term A-1 Loans with the longest weighted average life to maturityand 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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Revolving Loans and the Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrowers. 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 in Section 9.08(e10.08(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 amendment “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, 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 BorrowersCompany, (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 and title endorsement bringdownsDocuments) 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) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 thereunder and the application of the proceeds therefrom as if made and applied on such datedate (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 (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of outstanding 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 outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) made from time to time by the Borrowers to all Lenders of any Class of Term Loans and/or Revolving Facility Commitments (including, for the avoidance of doubt, any Non-extended Loans and the Revolving Facility A Commitments or Revolving Facility B Commitments), on a pro rata basis (based, in the case of an offer to the Lenders under any Class of one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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 L▇▇▇▇▇’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans, Term A-1 Loans or, Term A-2 Loans or Term A-3 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 latestlater 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) the Term A-3 Loan 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 determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding Facility Commitments and all obligations in respect thereof shall be Obligations of the foregoing, no Permitted Amendment shall become effective unless relevant Loan Parties under this Agreement and the Administrative Agent, to the extent to reasonably requested other Loan Documents that are secured by the Administrative Agent, 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 have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.be obligated to issue Letters of
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent Agent, (x) at any time and from time to timetime following the date that is the earlier of (1) three months earlier than the Project Octavius Scheduled Completion Date and (2) the Commencement of Operations of Project Octavius, request Incremental Revolving Facility Commitments in an aggregate amount not to exceed $25 million from one or more Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Facility Commitments, as the case may be, in their own discretion, and (y) at any time and from time to time (but, in the case of any Incremental Term Loan Commitments, following the Commencement of Operations of Project Linq), request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless . Any 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 5 million and a minimum amount of $25.0 10 million or equal to the remaining Incremental Amountamount available pursuant to clause (x) or (y) of the foregoing sentence, as applicable), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the any such date, an “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans B Loan Commitments or commitments to make term loans with pricing and interests rates and/or amortization and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”) and (iv) that the applicable Borrower is in compliance on such date in all material respects with all applicable material Construction Contracts in effect on such date and is adhering in all material respects to the then current Project Schedule (as defined in the Disbursement Agreement).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity datedate (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same terms as an existing Class of the Term Loans 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 Term B Facility Maturity Date, (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 maturityB Loans, (iv) with respect to the Other Octavius Borrower, prior to the Commencement of Operations of Project Octavius, all proceeds from Incremental Revolving Facility Loans and Incremental Term Loans shall rank pari passu be used to pay costs in right connection with Project Octavius and, with respect to the Linq Borrower, prior to the Commencement of payment and Operations of security with the Project Linq, all proceeds from Incremental Revolving Facility Loans, Loans and Incremental Term Loans shall be used to pay costs in connection with Project Linq and (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as Lender shall be reasonably satisfactory to the Borrowers and the Administrative Agent, and (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; provided, 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 Incremental Term Loan and/or Other Incremental Revolving Loanin the initial primary syndication thereof) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term B Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanin the initial primary syndication thereof) may exceed the Applicable Margin for any other Class of the Term B Loans and/or 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 B Loans in the initial primary syndication thereof), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), or if it does so exceed such Applicable MarginMargin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term B Loans in the initial primary syndication thereof), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanin the initial primary syndication thereof), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of the Term B Loans (which shall, for such purposes only, be deemed to include all upfront or Revolving Facility Loans, respectivelysimilar fees or original issue discount payable to all Lenders providing the Term B Loans in the initial primary syndication thereof). Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility 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 Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) no Default or Event of Default shall have occurred and be continuing or would result therefrom 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) All Incremental Term Loans and Incremental Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under the Credit Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under the Credit Agreement and the other Loan Documents. Each of 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)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basisB Loans, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans)as applicable, 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Commitments either, that at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which provided that the Administrative Agent shall withhold approval shall not be unreasonably withheld) unless if any of the L/C Issuers object to such Incremental Revolving Lender is a Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, an Affiliate and no Letters of a Lender or an Approved FundCredit may be requested by the Borrower under, such Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the same Borrower), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as an existing Class of Term Loans determined in good faith by the Borrower) or (yz) 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, or be unsecured (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, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the Term B Facility Maturity Date in effect on the date of incurrence (provided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, Term B Loans or Other Term Loans) (provided that this clause (iv) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Other Incremental Revolving Loans shall rank pari passu Term B Facility Maturity Date in right effect on the date of payment and of security with the Revolving Facility Loans, incurrence),
(v) the except as to pricing, final maturity date of any Other Incremental Revolving Loans shall be no earlier than 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 Revolving Facility Maturity Date andwith respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, except as subject to pricingclause (vi) and (vii) of this proviso, amortization be determined by the Borrower and final maturity datethe 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) then-current market terms (as determined in good faith by the same 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 Revolving Facility Loans Borrower) or (yz) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Maturity Date with respect to the Initial Revolving Loans; provided, further that the interest rate margin ,
(which shall be deemed viii) with respect to include all upfront or similar fees or original issue discount payable to all Lenders providing such any Other Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to Section 2.21(a) that (x) is a U.S. dollar denominated term loan incurred by the Borrower and (y) ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 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’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the conditions set forth in paragraphs (b) extent required by the relevant Incremental Assumption Agreement, no Event of Default shall have occurred and (c) of Section 4.01 shall be satisfied continuing or would result therefrom and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby 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 with respect to periods after the Term B Facility Maturity Date existing at the time of incurrence of such Extended Term Loan (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans and Commitments of the Accepting Lenders of the Affected Class shall have (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loansw) terms substantially similar to, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, or not materially less favorable to the extent to reasonably requested by the Administrative AgentBorrower and its Subsidiaries than, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.th
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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 ANNEXEXHIBIT A Lenders in their sole discretion), shall have (x) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Initial Revolving Facility 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),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the twelve month anniversary of the 2021 Effective Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; 2021 Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the 2021 Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B 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 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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. ANNEXEXHIBIT A Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or 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 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 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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 ANNEXEXHIBIT A Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and only with respect 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 and Commitments shall have (x) the same terms as an existing Class of the Accepting Lenders of the Affected Class Term Loans or (including any amendments necessary y) such other terms as shall be reasonably satisfactory to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the extent Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, such terms as shall be reasonably satisfactory to reasonably requested by the Administrative Agentsuch Issuing Bank or Swingline Lender, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered (v) any Extended Revolving Facility Commitments may participate on the Restatement Effective Date under Section 4.02.a pro rata basis or a
Appears in 1 contract
Sources: Successor Agent Appointment and Agency Transfer Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) The Borrowers Borrower Agent may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, with respect to any Borrowers 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 Agent, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approval approvals shall not be unreasonably withheld) withheld or delayed), in each case, unless such Incremental Revolving Facility Lender is a Lender, an Affiliate Revolving Facility Lender prior to the establishment of a Lender or an Approved Fundsuch Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum aggregate amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the 2024 Refinancing Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of (x) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), Term B Loans, (y) at all times on and after the First Amendment Effective Date (after giving effect thereto) and prior to the Second Amendment Effective Date, the 2023 Refinancing Term B Loans and (z) at all times on and after the Second Amendment Effective Date (after giving effect thereto), the 2024 Refinancing Term B Loans (such term loans at any given time, “Other Incremental Term Loans”).
(b) The Borrowers Borrower Agent 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 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 that:
(i) any commitments to make additional 2024 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the 2024 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower Agent, junior in right of payment and security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (iivii) below),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term Facility Maturity Date and, applicable to the 2024 Refinancing Term B Loans and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the 2024 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of 2024 Refinancing Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the 2024 Refinancing Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedSecond Amendment Effective Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such 2024 Refinancing Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Second Amendment Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 shall be increased so such that after giving effect to such increase, the interest rate margin 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 “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2024 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2024 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, on a junior basis) than the 2024 Refinancing Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and, the Borrowers’ consent (not to be unreasonably withheld) Borrower Agent and any other applicable Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower Agent and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall have occurred or 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 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 Mortgages Collateral Documents, as applicable, and other Security modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents and title endorsement bringdownsor hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree agrees that Section 2.16 shall apply to any conversion of Eurocurrency SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) made from time to time by the Borrower Agent 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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 Agent 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as Facility are offered to which such Lender’s acceptance has been made.
(f) The Borrowers be extended for the same amount of time and each Accepting Lender shall execute that the interest rate changes and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only fees payable with respect to such extension are the Loans same. Any such extension (an “Extension”) agreed to between the Borrower Agent and Commitments of the Accepting Lenders of the Affected Class any such Lender (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term LoansLoan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.“Extended Term Lo
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time such Incremental Commitments are committed to) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approval 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 FundFund 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 which, other than in respect of Government Debt, shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or or, (y) commitments to make term loans with pricing and amortization terms identical to Term B-1 Loans or (z) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans and the Term B-1 Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans, additional Term B-1 Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans, Term B-1 Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans, and/or the Term B-1 Loans (iior, with respect to Government Debt, at the Borrower’s option, may rank junior in right of security with the Term B Loans and/or the Term B-1 Loans or be unsecured),
(iii) the final maturity date of any such Other Incremental Term Loans (other than Government Debt) shall be no earlier than the Latest Term B Facility Maturity Date or the Term B-1 Facility Maturity Date and, except as to pricing, amortization and 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), such Other Term Loans (other than Government Debt) shall have (x) substantially the same terms as an existing Class of the Term B Loans or 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, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans (other than Government Debt) shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with or the longest weighted average life to maturity, Term B-1 Loans,
(ivv) the Other Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of payment and of security with the Initial Revolving Facility Loans, ,
(vvi) the final maturity date of any such Other Incremental 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, amortization and 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) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 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.,
(cvii) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (iA) 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Loan incurred pursuant to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under clause (a) of this Section 4.02.2.21
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time of such request 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, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and each Issuing Bank (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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 2.5 million and a minimum amount of $25.0 10.0 million or equal to the remaining Incremental AmountAmount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of whether such Incremental Commitments are to be (A) Tranche A Revolving Facility Commitments, whether such Incremental (B) Tranche B Revolving Facility Commitments are to be Revolving Loan Commitments or Commitments, (C) commitments to make revolving loans (such loans, “Other Tranche A Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche A Revolving Facility Loans, but with pricing terms, final maturity date and/or amortization upfront or similar fees or other terms different from the Tranche A Revolving Facility Loans or (“Other Incremental Revolving Loans”), and (ivD) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term revolving loans (such loans, “Other Tranche B Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche B Revolving Facility Loans, but with pricing terms, final maturity date and/or amortization terms identical to an existing Class of Term Loans upfront or commitments to make term loans with pricing and amortization similar fees or other terms different from one or more existing Classes of Term Loans (“Other Incremental Term the Tranche B Revolving Facility Loans”).
(b) The applicable Borrowers 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 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 that:
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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 Tranche A Loans shall rank pari passu in right of payment and of security with the Tranche A 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 datedate and/or upfront or similar fees, shall have (x) the same terms as the Tranche A Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(viii) the weighted average life Other Tranche B Loans shall rank pari passu in right of payment and of security with the Tranche B Revolving Facility Loans and, except as to pricing, final maturity date and/or upfront or similar fees, shall have (x) the same terms as the Tranche B Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iii) the final maturity date of any Other Incremental Revolving Tranche A Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Maturity Date then in effect for the Tranche A Revolving Facility Loans; provided, further that and the interest rate margin (which final maturity date of any Other Tranche B Loans shall be deemed no earlier than the Maturity Date then in effect for the Tranche B Revolving Facility Loans,
(iv) the Other Tranche A Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to include all upfront the Tranche A Revolving Facility Loans in any voluntary or similar fees mandatory prepayment or original issue discount payable commitment reduction hereunder (except at maturity), and the Other Tranche B Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to all Lenders providing such Other Incremental Term Loan and/or Other Incremental the Tranche B Revolving LoanFacility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity),
(v) the All-in Yield in respect of any Other Incremental Term Loan and/or Tranche A Loans may exceed the All-in Yield in respect of the Tranche A Revolving Facility Loans by no more than 0.50% or, if such Other Incremental Tranche A Loans do so exceed such All-in Yield for the Tranche A Revolving Loan shall be Facility Loans (such difference, the same as that “Tranche A Yield Differential”), then the Applicable Margin applicable to the Term Loans and/or the Tranche A Revolving Facility Loans; except Loans shall be increased such that after giving effect to such increase, the interest rate margin Tranche A Yield Differential with respect to the Other Tranche A Loans shall not exceed 0.50%,
(vi) the All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) Tranche B Loans may exceed the Applicable Margin for any other Class All-in Yield in respect of Term Loans and/or the Tranche B Revolving Facility Loans, respectively, Loans by no more than 1/2 of 10.50% or, if such Other Tranche B Loans do so exceed such All-in Yield for the Tranche B Revolving Facility Loans (it being understood that any such increase may take difference, the form of original issue discount (“OIDTranche B Yield Differential”), with OID being equated then the Applicable Margin applicable to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin Tranche B Revolving Facility Loans shall be increased so such that after giving effect to such increase, the interest rate margin Tranche B Yield Differential with respect to the Other Tranche B Loans shall not exceed 0.50%,
(vii) [reserved], and
(viii) the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of such the Tranche B Revolving Facility Loans and any Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which Tranche B Loans shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1at least 0.75% higher than the Applicable Margin for each Class All-in Yield in respect of Term Loans or the Tranche A Revolving Facility Loans and any Other Tranche A Loans, respectively. 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 2.20 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrowers and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.20 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the BorrowersIntermediate Holdings, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as 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 Amendment Effective 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 require request to assure that the Incremental Term additional Revolving Facility Loans and/or the Other Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed contemplated by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the then existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments Commitment, Intermediate Holdings and its Subsidiaries shall be in compliance with the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied Financial Performance Covenant on such datea Pro Forma Basis.
(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 additional Revolving Facility Loans in respect of Incremental Term Loans Commitments (other than Other Incremental Term Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Tranche A Revolving Facility Loans in respect of Incremental or Tranche B Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally madeas applicable, 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 or CDOR Rate Loans, as applicable to ABR Rate Loans or Canadian Prime Rate Loans, as applicable, as reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.20), make pursuant to one or more offers (each, made from time to time by a “Loan Modification Offer”) Borrower to all the Lenders of one or more Classes any Class of Loans and/or Commitments, on a pro rata basis (based on the aggregate outstanding Commitments under such Class) and on the same terms (each Class subject “Pro Rata Extension Offers”), such Borrower is hereby permitted to such a Loan Modification Offer, an “Affected Class”) consummate transactions with individual Lenders from time to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant time to procedures reasonably specified by extend the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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 maturity date of such noticeLender’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 relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments of such Class). Permitted Amendments shall become effective only with respect to For the Loans and Commitments avoidance of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lendersdoubt, the reference to “Accepting Lenders”) andon the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Accepting LenderClass of Revolving Facility Commitments, only that all of the Revolving Facility Commitments 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 Lender’s Loans and Commitments extension of such Affected Class as are the same. Any such extension (an “Extension”) agreed to which between such Borrower and any such Lender (an “Extending Lender’s acceptance has been made”) will be established under this Agreement by implementing an Incremental Commitment for such Lender (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”).
(f) The Borrowers applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Revolving Facility Commitments; provided, that (i) except as to pricing, fees and final maturity (which shall be determined by such Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (A) the same terms and conditions thereof. The as an existing Class of Revolving Facility Commitments or (B) have such other terms as shall be reasonably satisfactory to the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementand (ii) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 and only the Borrowers and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable 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, such Extending Lender will be deemed to have an Incremental 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 2.20), (i) the aggregate amount of Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no 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 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 Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time (other than (x) notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Revolving Facility Commitment implemented thereby and (including any amendments necessary to treat y) the Loans and Commitments satisfaction of the Accepting Lenders conditions set forth in clauses (b) and (c) of Section 4.01 and the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested receipt by the Administrative AgentAgent of a certificate to that effect dated as of the effective date of the Extension and executed by a Responsible Officer of Intermediate Holdings), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all 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 (vii) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Facility Commitments beyond the applicable maturity date of the applicable Commitments that were extended by such Extended Revolving Facility Commitments unless it shall have received legal opinionsconsented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the corresponding Pro Rata Extension Offer; provided, board resolutions and/or an officer’s certificate consistent that the applicable Borrower shall cooperate with those delivered on the Restatement Effective Date under Section 4.02Administrative 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.
Appears in 1 contract
Sources: Amendment Agreement (Momentive Performance Materials Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, each in their own discretion; provided, that each Incremental Term Lender and Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Term Lender or 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments that will exist after giving effect to the request (and which shall not exceed $250 million), (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “"Increased Amount Date”"), (iiiiv) in the case of Incremental Revolving Facility Loan Commitments, whether such Incremental Revolving Facility Loan Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“"Other Incremental Revolving Loans”"), and (ivv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments or commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term B Loans (“"Other Incremental Term Loans”").
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, shall have (x) the same terms as an existing Class of the Term Loans 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 Term B Facility Maturity Date, (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 maturityB Loans, (iv) the Other Incremental Revolving Loans shall rank pari passu or junior 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, shall have (x) the same terms as the Revolving Facility Loans Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viv) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyMaturity Date. 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 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 Borrowers’ Borrower's consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of 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 Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with -77- those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrowers 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 datedate the Total Net Secured Leverage Ratio shall be less than or equal to 4.50:1.00.
(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)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B 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 Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Initial Revolving Facility 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),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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;
(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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and conditions thereof. The commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall promptly notify each Lender as be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the effectiveness of each Loan Modification AgreementInitial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Extended Term Loans, Other Revolving Loans and/or Other Extended Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Fac
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, as applicable, in an aggregate 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility CommitmentsCommitment, whether such Incremental Revolving Facility Commitments are to be additional Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization other terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 CommitmentsLoans; provided, that that
(i) the final maturity date of any Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with be no earlier than the Term B Loans, A-2 Facility Maturity Date;
(ii) the final maturity date of any Other Incremental Term Revolving Loans shall be no earlier than the Latest Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, 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, Date;
(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-Term A-2 Loans;
(iv) Holdings and the Borrower shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the Facilities), and under all Incremental Facilities then outstanding Class or requested, provided that (A) in no event shall the aggregate face amount of Term Loans the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the longest weighted Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the time that the definitive documentation for such Permitted Business Acquisition or Material Investment is executed;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Closing Date will not be more than 0.50% higher than the corresponding all-in yield (ivdetermined on the same basis) applicable to the Term A-2 Facility, unless the Applicable Margin with respect to the Term A-2 Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) the Other all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Incremental Facilities or its affiliates) applicable to any Incremental Revolving Loans shall Facility incurred at any time after the Closing Date and taking the form of a new tranche of revolving credit facilities will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Revolving Facility, unless the Applicable Margin with respect to the Revolving Facility is increased by an amount equal to the difference between the all-in yield with respect to such Incremental Revolving Facility and the all-in yield on the Revolving Facility minus 0.50%;
(viii) Incremental Term Facilities may rank pari passu in right of payment and security with, or junior in right of security to, the other Facilities (but shall in any case be secured (and, in the case of any Incremental Term Facilities ranking junior in right of security to the other Facilities, shall be subject to customary intercreditor terms to be reasonably acceptable to the Administrative Agent and the Borrower), except during a Collateral Suspension Period, when Incremental Term Facilities shall be unsecured and shall be subject to substantially the same provisions with respect to a Collateral Reinstatement Event as the Revolving Facilities, in which case, such applicable Incremental Term Facility will be established as a separate facility from the then existing Term Loans, ; and
(vix) the final maturity date other terms and documentation in respect of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and(including, except without limitation, as to pricing, amortization and amortization, final maturity date, shall have (x) participation in mandatory prepayments and ranking as to security), to the same terms as extent not consistent with the Revolving Facility Loans or (y) such other terms as Facilities, shall be reasonably satisfactory to as agreed between the Administrative Agent, Borrower and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) Facility (but in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable case subject to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”specific limitations and requirements set forth above), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e)11.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of any Lender (other than the applicable Incremental Lenders), effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.15.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.15 unless (i) on the date of such effectiveness, the conditions condition set forth in paragraphs paragraph (b) and (c) of Section 4.01 5.05 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower, (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 Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption AgreementAgreement in accordance with clause (b)(viii) above, junior to) the existing Term Loans and Revolving Facility Loans Loans; and (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, to the Borrowers extent the proceeds of any Incremental Facility are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, (x) the absence of the existence of any Default or Event of Default (other than an Event of Default under Section 8.01(b), (c), (h) or (i)) shall not be a condition to the incurrence of such Incremental Facility and (y) the foregoing clause (i) shall be limited, to the extent agreed with the Incremental Lender(s) providing such Incremental Facility, to customary “specified representations” and those representations of the seller or the target company (as applicable) included in Pro Forma Compliance after giving effect the acquisition agreement related to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and Permitted Business Acquisition that are material to the Loans to be made thereunder and the application interests of the proceeds therefrom Lenders and only to the extent that Holdings or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as if made and applied on a result of a breach of such daterepresentations.
(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 and Other Revolving Loans)) in the form of additional Term A-1 Loans, Term A-2 Loans or Revolving Facility Loans, as the case may be, when originally made, are included in each Borrowing of outstanding applicable Class of Term A-1 Loans, Term A-2 Loans on a pro rata basis, and (ii) all or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally madeas applicable, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 3.05 shall apply to any conversion of Eurocurrency Eurodollar Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 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 approval 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 FundFund 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 $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, borrowers, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, borrowers, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans shall rank pari passu or or, at the option of the Borrowers, junior in right of payment and security with the Term B Loans (provided, that (A) 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 (iivii) below and (B) if such Other Term Loans are incurred by a Foreign Subsidiary, such Other Term Loans may also be guaranteed by one or more Foreign Subsidiaries and secured by assets owned by one or more Foreign Subsidiaries, in each case as agreed to by the Borrowers, the Administrative Agent and the relevant Incremental Term Lenders),
(iii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (x) substantially the same terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Initial Revolving Loans (and, if such Other Revolving Loans are incurred by a Foreign Subsidiary, such Other Revolving Loans may also be guaranteed by one or more Foreign Subsidiaries and secured by assets owned by one or more Foreign Subsidiaries, in each case as agreed to by the Borrowers, the Administrative Agent and the relevant Incremental Revolving Facility Loans, Lenders),
(vvi) the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) incurred prior to the twelve month anniversary of the Third Restatement Effective Date that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Third Restatement Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Third Restatement Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so 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;
(viii) with respect to any commitments to make Other Revolving Loans incurred prior to the twelve month anniversary of the Third Restatement Effective Date 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 Third Restatement Effective Date, except that the interest rate margin 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 Third Restatement Effective 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;
(x) Except in connection with a Euro Incremental Facility, there shall be no obligor in respect of any Incremental Term Loan Commitments or Other Incremental Revolving LoanFacility Commitments that is not a Loan Party; and
(xi) the Other Revolving Loans and Other Term Loans shall be either (x) denominated in U.S. Dollars or Euros and borrowed by the Borrowers or (y) denominated in Euros and borrowed by a Foreign Subsidiary (such borrower, as a “Euro Borrower” and such facility, a “Euro Incremental Facility”); provided that in the case may be of this clause (which y), (1) the Euro Borrower shall be deemed identified in the applicable Incremental Assumption Agreement and shall be reasonably satisfactory to include all upfront or similar fees or original issue discount payable the Administrative Agent (it being agreed that Rexnord Flattop Holdings B.V. shall be satisfactory to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan)the Administrative Agent) and (2) the Euro Borrower shall become party hereto as a Euro Borrower pursuant to a joinder, is no more than 1/2 and subject to delivery of 1% higher than customary opinions and other documents, reasonably satisfactory to the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Administrative Agent; Each of the parties party 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 in Section 9.08(e) and (ii) in connection with any Incremental Assumption Agreement implementing a Euro Incremental Facility, such Incremental Assumption Agreement shall contain “collection allocation mechanism” provisions substantially the same as those set forth on Schedule 2.21(b) hereto (which provisions the Lenders hereby consent to and approve). 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 amendment “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, 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, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the Borrowers, Borrowers 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Third Restatement Effective Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect with respect to such Incremental any Other Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder incurred by a Foreign Subsidiary, such other collateral and guarantee documentation with respect to any Foreign Subsidiary or any asset of Foreign Subsidiaries as the application of Administrative Agent may reasonably request to implement the proceeds therefrom as if made collateral and applied on such dateguarantee arrangements contemplated by this Section 2.21 with respect thereto).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other applicable Extended Term Loans, Other Revolving Loans and/or Other Extended Revolving Credit Facility Commitments). Notwithstanding the foregoing; provided, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rexnord Corp)
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to timetime prior to the First Amendment Effective Date, request Incremental Term Loan Commitments and/or and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, as applicable, in an aggregate 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility CommitmentsCommitment, whether such Incremental Revolving Facility Commitments are to be additional USD Revolving Loan Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization other terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers applicable 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 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 CommitmentsLoans; provided, that that
(i) the final maturity date of any Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with be no earlier than the Term B Loans, A-2 Facility Maturity Date; provided that at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Incremental Term Revolving Loans shall be no earlier than the Latest Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, 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, Date;
(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 A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans with the longest and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity, (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 shorter than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the remaining weighted average life to maturity of any Other Incremental Revolving the Term A-2 Loans shall be but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other Class transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of Revolving the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility Loans; provided(or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Test, further that the interest rate margin (which Leverage Ratio Test shall be deemed to include all upfront or similar fees or have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan and upfront fees (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threea four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or if it does so exceed payable to the arranger of such Applicable MarginIncremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, such unless the Applicable Margin shall be with respect to the Term A-2 Facility is increased so that by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in respect right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) (A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Other Incremental Term Loan Facilities or Other its affiliates) applicable to any Incremental USD Revolving Loan, as Facility incurred at any time after the case may Restatement Date and taking the form of a new tranche of revolving credit facilities will not be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 10.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, unless the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). Permitted Amendments shall become effective only with respect to the Loans and Commitments of USD Revolving Facility is increased by an amount equal to the Lenders of difference between the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, all-in the case of any Accepting Lender, only yield with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments Incremental USD Revolving Facility and the terms all-in yield on the USD Revolving Facility minus 0.50% and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only Applicable Margin with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Multicurrency Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Facility is increased by an amount equal to the extent to reasonably requested by amount of any increase in the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on interest rate margin for the Restatement Effective Date under Section 4.02.USD Revolving Facility;
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and the Issuing Bank (neither of which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans Term Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (viii) 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 Incremental Revolving Term Loans shall be no shorter than the remaining weighted average life to maturity of any other Class the Term B Loans, and (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Facility Loans; providedLoans and except as to pricing, further that the interest rate margin amortization and final maturity date, shall have (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanx) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same terms as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan , as applicable, or (which y) such other terms as shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated reasonably satisfactory to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyAgent. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of 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 BorrowersBorrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and Loans, (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iv) the Borrowers shall be in Total Net Senior Secured Leverage Ratio on a Pro Forma Compliance Basis shall not be greater than 3.00 to 1.00 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)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B 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 Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Noranda Aluminum Acquisition CORP)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) the Other Incremental any commitments to make additional Term B Loans, Term B-2 Loans and/or additional Initial Revolving Loans shall rank pari passu or junior in right of payment and of security with have the same terms as the Term B Loans, Term B-2 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 Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosing Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(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) (A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clause (b) and (cd) 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 BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 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 the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Security Documents Collateral Documents, as applicable, and title endorsement bringdownsdate-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other applicable Extended Term Loans, Other Revolving Loans and/or Other Extended Revolving Credit Facility Commitments). Notwithstanding the foregoing; provided, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.that (i) exc
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Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to timetime prior to the First Amendment Effective Date, request Incremental Term Loan Commitments and/or and, with the consent of the Administrative Agent (not to be unreasonably withheld or delayed), Incremental Revolving Facility Commitments, as applicable, in an aggregate 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the then-remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of any Incremental Term Loan Commitment, whether such Incremental Term Loan Commitments are to be Term A-1 Loan Commitments, Term A-2 Loan Commitments or commitments to make term loans with pricing and/or other terms different from the Term A-1 Loans and the Term A-2 Loans (“Other Term Loans”) and (iv) in the case of any Incremental Revolving Facility CommitmentsCommitment, whether such Incremental Revolving Facility Commitments are to be additional USD Revolving Loan Facility Commitments, additional Multicurrency Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization other terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers applicable 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 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 CommitmentsLoans; provided, that that
(i) the final maturity date of any Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with be no earlier than the Term B Loans, A-2 Facility Maturity Date; provided that at Holdings’ election (in its sole discretion) Other Term Loans in an aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a final maturity date earlier than the Term A-2 Facility Maturity Date but no earlier than the Term A-1 Facility Maturity Date;
(ii) the final maturity date of any Other Incremental Term Revolving Loans shall be no earlier than the Latest Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, 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, Date;
(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 A-2 Loans; provided that at Holdings’ election (in its sole discretion) Other Term Loans with the longest and/or Incremental Notes (pursuant to Section 2.15(e)(ii)(E)) in a combined aggregate principal amount outstanding not to exceed $100,000,000 from time to time may have a weighted average life to maturity, (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 shorter than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the remaining weighted average life to maturity of any Other Incremental Revolving the Term A-2 Loans shall be but no shorter than the remaining weighted average life to maturity of the Term A-1 Loans;
(iv) Holdings and Products shall use their commercially reasonable efforts to increase the face amount of the Title Policies with respect to the Jesup Facility to an amount that is at least equal to the aggregate amount of all Loans and unused Commitments under the Facilities, under all secured Refinancing Debt (without duplication of amounts under the other Facilities), and under all Incremental Facilities (without duplication of amounts under the other Facilities) then outstanding or requested, provided that (A) in no event shall the aggregate face amount of the Title Policies exceed $1,250,000,000, and (B) the Administrative Agent may, from time to time, and without any requirement for Lender consent, waive such requirement to increase the amount of such title insurance;
(v) the Leverage Ratio Toggle Test (tested only on the date of the initial incurrence of the applicable Incremental Facility) shall be satisfied on a Pro Forma Basis (giving effect to the assumptions referred to in the last paragraph of the definition of “Incremental Amount”), provided that to the extent the proceeds of any Incremental Facility (or Incremental Notes) are being used to finance a Permitted Business Acquisition or a Material Investment permitted hereunder, compliance with the Leverage Ratio Toggle Test shall be calculated on a Pro Forma Basis at the relevant Test Date, and if, after giving effect to such Permitted Business Acquisition or Material Investment and the other Class transactions to be entered into in connection therewith on a Pro Forma Basis as if they had occurred at the beginning of Revolving the most recent Test Period ending prior to such Test Date, the applicable Borrower could have incurred such Incremental Facility Loans; provided(or Incremental Notes) on such Test Date in compliance with the Leverage Ratio Toggle Test, further that the interest rate margin (which Leverage Ratio Toggle Test shall be deemed to include all upfront or similar fees or have been complied with;
(vi) the all-in yield (including interest rate margins, any interest rate floors, original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan and upfront fees (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threea four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or if it does so exceed payable to the arranger of such Applicable MarginIncremental Facilities or its affiliates) applicable to any Incremental Term Facility incurred within 12 months after the Restatement Date will not be more than 0.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the Term A-2 Facility, such unless the Applicable Margin shall be with respect to the Term A-2 Facility is increased so that by an amount equal to the difference between the all-in yield with respect to such Incremental Term Facility and the all-in yield on the Term A-2 Facility minus 0.50% and the Applicable Margin with respect to the Term A-1 Facility is increased by an amount equal to the amount of any increase in the interest rate margin for the Term A-2 Facility; provided, that this clause (b)(vi) shall not apply if the applicable Incremental Term Facility ranks junior in respect right of security to the other Facilities or is initially unsecured, in each case, as provided in clause (viii) below,
(vii) (A) the all-in yield (including interest rate margins, any interest rate floors and upfront fees (based on a four-year average life to maturity), but excluding arrangement, structuring, underwriting and other similar fees paid or payable to the arranger of such Other Incremental Term Loan Facilities or Other its affiliates) applicable to any Incremental USD Revolving Loan, as Facility incurred at any time after the case may Restatement Date and taking the form of a new tranche of revolving credit facilities will not be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 10.50% higher than the corresponding all-in yield (determined on the same basis) applicable to the USD Revolving Facility, unless the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). Permitted Amendments shall become effective only with respect to the Loans and Commitments of USD Revolving Facility is increased by an amount equal to the Lenders of difference between the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, all-in the case of any Accepting Lender, only yield with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments Incremental USD Revolving Facility and the terms all-in yield on the USD Revolving Facility minus 0.50% and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only Applicable Margin with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Multicurrency Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Facility is increased by an amount equal to the extent to reasonably requested by amount of any increase in the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on interest rate margin for the Restatement Effective Date under Section 4.02.USD Revolving Facility;
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approval 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 FundFund 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 $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Initial Term B Loans or Term B-1 Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one the Initial Term B Loans or more existing Classes of Term B-1 Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Initial Term B Loans, Term B-1 Loans and/or additional Initial Revolving Loans shall have the same terms as the Initial Term B Loans, Term B-1 Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans, ,
(iiiii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments and ranking as to security reductions (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 an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of payment and of security with the Initial Revolving Facility Loans, ,
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of Section 2.21, the All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Initial Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Initial Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Initial Term B Loans and the Term B-1 Loans shall be increased so such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that, (A) 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 Initial Term B Loans and the 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 Initial Term B Loans and the Term B-1 Loans then outstanding; and (B) for the avoidance of doubt, any increase in the margin or “LIBOR floor” in respect of the Initial Term B Loans as a result of this clause (vii) shall apply to the Term B-1 Loans to the same extent,
(viii) with respect to any commitments to make any such Other Revolving Loans incurred pursuant to clause (a) of Section 2.21, 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 interest rate margin 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 Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitmentsprovided for in Section 9.08(e). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested Any such deemed amendment may be memorialized in writing by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officerAgent with the Borrower’s certificate consistent with those delivered on consent (not to be unreasonably withheld) and furnished to the Restatement Effective Date under Section 4.02.other parties hereto. If provided in any Increm
Appears in 1 contract
Sources: Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (a) The After the Amendment and Restatement Effective Date, the Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility 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 and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of a Lender the U.S. Revolving Facility or an Approved FundCanadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that (i) up to $250 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) the Incremental Revolving Facility Commitments may be in the form Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 5 million and a minimum amount of $25.0 25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iiiiv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be will constitute U.S. Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Canadian Revolving Loans (“Other Incremental Revolving Loans”)Facility Commitments, and (ivv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Revolving Facility Commitments are to will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be commitments to make term loans with pricing and/or amortization requested on a single Increased Amount Date, and (y) the terms identical to an existing Class of Term Loans or commitments to make term loans with pricing such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and amortization terms different from one or more existing Classes of Term Loans (“Other shall be as agreed by the relevant Incremental Term Loans”Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect increase the existence and terms U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby thereby, except as provided for in Section 9.08(erequired by the last sentence of this clause (b) and as required by clause (c). 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.
(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. In addition, 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify an amendment to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification (i) this Agreement, this Agreement shall be deemed amended incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the extent FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to reasonably requested Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Administrative AgentCollateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, shall have received legal opinionsbut prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02as applicable) (other than Noticed Bank Products).
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and the Issuing Bank (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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans Term Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (viii) 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 Incremental Revolving Term Loans shall be no shorter than the remaining weighted average life to maturity of any other Class the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Facility Loans; providedLoans and except as to pricing, further that the interest rate margin amortization and final maturity date, shall have (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanx) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same terms as that applicable to the Term Loans and/or the Revolving Facility Loans; except that , as applicable, or (y) such other terms as shall be reasonably satisfactory to the interest rate margin in respect Administrative Agent, (v) the final maturity date of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which Loans shall be deemed to include all upfront no earlier than the Revolving Facility Maturity Date, and (vi) the Borrower shall have no senior unsecured bridge term loans or similar fees or original issue discount payable to all Lenders providing senior subordinated bridge terms loans outstanding at the time such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Other Revolving Facility Loans are incurred unless such bridge loans are repaid in full with the proceeds of the Other Term Loans or Other Revolving Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of 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 BorrowersBorrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrowers 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)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B 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 Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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; providedprovided that in the case of Incremental Revolving Commitments either, that at the election of the Borrowers, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which provided that the Administrative Agent shall withhold approval shall not be unreasonably withheld) unless if any of the L/C Issuers object to such Incremental Revolving Lender is a Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, an Affiliate and no Letters of a Lender or an Approved FundCredit may be requested by the Borrowers under, such Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the same Borrowers), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as an existing Class of Term Loans determined in good faith by the Borrowers) or (yz) 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, or be unsecured (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, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the latest Term 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 Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, (iv) the Term B Loans or Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Term 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, 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 Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the same Borrowers), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Revolving Facility Loans Borrowers) or (yz) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that (w) is incurred prior to the twelve-month anniversary of the Closing Date, (x) has an outside maturity date less than one year after the latest maturity date of the initial Term B Loans, (y) is not incurred in connection with a Permitted Business Acquisition or any other Class acquisition or Investment that is not prohibited by this Agreement and (z) ranks pari passu in right of Revolving Facility security with the Term B Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans a Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrowers) or (i) (with respect to the Borrowers) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, made from time to time by a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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/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, only the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments 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 latest Term 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 Borrowers and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender conditions, taken as a whole, applicable to the effectiveness existing Class of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent Term Loans (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested determined in good faith by the Administrative AgentBorrowers), shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on (x) then-current market terms (as determined in good faith by the Restatement Effective Date under Section 4.02.Borr
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments and/or Incremental additional Revolving Facility Commitments, as applicableapplicable (collectively, in an amount not to exceed the “Incremental Amount Commitments”), from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include in the sole discretion of such Lenders) or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to $20,000,00025,000,000; provided that (i) Incremental Commitments will first be offered to the then-existing Lenders on a pro rata basis in accordance with each such Lender's holdings of the then existing Term Loans and Revolving Commitments (but no existing Lender will have any obligation to establish any Incremental Commitment) and, to the extent such existing Lender) willing Lenders have not agreed or have declined to provide such Incremental Term Loans and/or within five (5) Business Days following such offer on the terms specified by the Borrower or arranger of such Incremental Revolving Facility CommitmentsLoans, as after being provided a bona fide opportunity to do so, the case Borrower may bethen offer such opportunity (on the same terms) to other Persons; (ii) at the time of the incurrence of such Incremental Commitments and immediately after giving effect thereto and to the use of the proceeds thereof (assuming the full utilization thereof), in their own discretionno Default shall have occurred and be continuing or would result therefrom; providedand (iii) each such Person, that each Incremental Revolving Facility if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection with any additional Revolving Commitment, the L/C Issuer (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender withheld or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental or additional Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 1,000,000 and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), 1,000,000) and (ii) the date on which such Incremental Term Loan Commitments and/or Incremental additional Revolving Facility Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the “Increased Amount Date”date of such notice, unless otherwise agreed to by the Administrative Agent), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of . All Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to Loans shall be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”)made in Dollars.
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental additional 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 Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Incremental Term Loans to be made thereunder. The Administrative Agent shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest Maturity Date and, except promptly notify each Lender as to pricing, amortization and final maturity date, shall have (x) the same terms as an existing Class effectiveness of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other each 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e)and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the Revolving Loans and any other Class of Incremental Term Loans;
(ii) in the case of Incremental Term Loans, shall not mature earlier than the later of the Revolving Maturity Date, and, if applicable, the Latest Maturity Date of any Incremental Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, except to the extent resulting from customary (as determined by the Administrative Agent and the Borrower, each acting reasonably) amortization for a "term loan A" of the kind generally held by commercial banks, shall have a Weighted Average Life to Maturity not shorter than the later of (a) the remaining time until the Revolving Maturity Date and (b), if applicable, the remaining Weighted Average Life to Maturity of any Class of then existing Incremental Term Loans;
(iv) in the case of Incremental Term Loans, subject to clauses (ii) and (iii) above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders;
(v) in the case of Incremental Term Loans, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(vi) in the case of Incremental Term Loans, may have customary mandatory prepayments in respect of excess cash flow and the net proceeds of issuances of Indebtedness, Dispositions and casualty and condemnation events, as specified in the applicable Incremental Assumption Agreement; and
(vii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to the existing Revolving Commitments and Revolving Loans.
(d) No Incremental Term Loan Commitments or Incremental additional Revolving Facility Commitment Commitments shall become effective under this Section 2.21 unless (i) 2.11 unless, on the date of such effectiveness, (i) the conditions set forth in paragraphs (ba) and (cb) of Section 4.01 4.2 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the Borrowers, Borrower; and (ii) the Administrative Agent shall have received customary legal opinions(with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, board resolutions opinions of counsel and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required requested by the Administrative Agent, consistent .
(e) In connection with those delivered on the Closing Date and any such additional customary documents and filings Revolving Commitments, each existing Revolving Lender (including amendments other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment in connection therewith shall have the right, subject to the Mortgages other terms and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect conditions of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (orthis Section 2.11, to provide a portion of such Incremental Commitment in an amount equal to (i) its Applicable Percentage of the extent agreed existing Revolving Commitments, multiplied by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to(ii) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to amount of such Incremental Commitment. In connection with any such Incremental Term Loan Commitments, each existing Term Lender (other than a Defaulting Lender) that shall have agreed to provide an Incremental Commitment and/or in connection therewith shall have the right, subject to the other terms and conditions of this Section 2.11, to provide a portion of such Incremental Revolving Facility Term Loan Commitments in an amount equal to (i) a fraction, the numerator of which is the Outstanding Amount of such Term Lender’s Term Loans, and the denominator of which it the Outstanding Amount of all Term Loans to be made thereunder and of all Term Lenders, multiplied by (ii) the application amount of the proceeds therefrom as if made and applied on such dateIncremental Commitment.
(df) 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 that, following the establishment of any additional Revolving Commitments, the outstanding Revolving Loans are held by the Revolving Lenders in accordance with their new Applicable Percentages. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Class on the date of each additional Revolving Commitment, or by allocating a portion of each Incremental Term Loans (other than Other Incremental Loan to each outstanding SOFR Term Loans), when originally made, are included in each Borrowing of outstanding applicable the same Class of Term Loans on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and (ii) all Revolving Facility Loans in respect notwithstanding any other provision of Incremental Revolving Facility Commitments (other than Other Incremental this Credit Agreement that would prohibit such an initial Interest Period), or requiring a prepayment and reborrowing of 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 Any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice or prepayment made pursuant 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 preceding sentence shall be subject to such a Loan Modification OfferSection 3.5 (it being understood that, an “Affected Class”) to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence consult with the acceptance of Borrower regarding the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agentforegoing and, to the extent practicable, will attempt to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02pursue options that minimize breakage costs).
Appears in 1 contract
Sources: Credit Agreement (Ooma Inc)
Incremental Commitments. (a) The Borrowers may, by written notice Subject to the Administrative Agent from time terms and conditions set forth herein, so long as no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to time, request such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicablethe Borrower shall have the right from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in an amount not to exceed the Incremental Amount from form of (a) one or more Incremental Term Lenders and/or increases to the Aggregate Revolving Committed Amount (“Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments” and the loans advanced thereunder, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and ) or (ivb) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more term loan commitments or one or more increases in any then-existing Classes of Term Loans term loan commitments (“Other Incremental Term Commitments” and the loans advanced thereunder, “Incremental Term Loans”; any Incremental Term Commitments, together with any Incremental Revolving Commitments, the “Incremental Commitments” and any Incremental Term Loans, together with any Incremental Revolving Loans, the “Incremental Loans”), by an aggregate amount of up to $1,000,000,000.
(b) The Borrowers following terms and each conditions shall apply to all Incremental Commitments and Incremental Loans: (a) the Incremental Loans shall constitute Credit Party Obligations, (b) (i) any Incremental Revolving Commitments shall be on the same terms (other than with respect to any upfront fees or arrangement fees) as the existing Revolving Commitments and (ii) any Incremental Term Lender and/or Loans shall have an amortization schedule, mandatory prepayment requirements (which mandatory prepayments shall be permitted to be applied, first, to Incremental Term Loans, and second, to any Revolving Facility Lender shall execute Loans), interest rates, rate floors, upfront fees, funding discounts, original issue discounts and deliver to prepayment premiums as determined by Hyatt, 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 Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of institutions providing the applicable Incremental Term Loans and/or Commitments, (c) any such Incremental Revolving Facility Commitments; provided, that (i) the Other Commitments and Incremental Term Loans shall rank pari passu or junior in right be entitled to the same voting rights as the existing Commitments and Loans and shall be entitled to receive proceeds of payment and of security with prepayments on the Term B same basis as comparable Loans, (iid) any such Incremental Commitment shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (e) such Incremental Commitments shall be in a minimum principal Dollar Amount (determined as of the most recent Revaluation Date) of $50,000,000 and integral multiples of $5,000,000 in excess thereof, (f) 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, upon the effectiveness proceeds of any Incremental Assumption AgreementLoan will be used in accordance with Section 3.13, this Agreement (g) the Borrower shall be amended to execute such promissory notes as are necessary and requested by the extent (but only to the extent) necessary Lenders to reflect the existence Incremental Commitments and terms Incremental Loans and (h) the representations and warranties made by the Borrower herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects on and as of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby date of such Extension of Credit as provided if made on and as of such date (except for those which expressly relate to an earlier date in Section 9.08(ewhich case such representations and warranties shall be true and correct as of such earlier date). 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.
(c) Notwithstanding The Borrower may invite existing Lenders or other banks, financial institutions and investment funds that are not Lenders and that are reasonably acceptable to the foregoingAdministrative Agent and that would satisfy the same criteria that would be required for such bank, no financial institution or investment fund to be an “Eligible Assignee” to join this Credit Agreement as Lenders to provide any Incremental Term Loan Commitment or Commitments and Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless Loans (any lender in respect of the Incremental Commitments and Incremental Loans, an “Incremental Lender”), provided (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 no existing Lender shall have received a certificate any obligation to that effect dated such date provide all or any portion of any Incremental Commitments or Incremental Loans and executed by a Responsible Officer of the Borrowers, (ii) the Administrative Agent such other banks, financial institutions and investment funds that are not existing Lenders shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, enter into such joinder agreements 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) give effect thereto as the Administrative Agent and the Borrower may reasonably require request and shall thereafter be deemed to assure that be Lenders. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Sections 10.6(c) or 10.6(e)) of the outstanding Loans (excluding Competitive Loans) and Participation Interests to the Incremental Term Loans and/or Revolving Facility Loans in respect of Lenders providing any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (orCommitment so that, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or assignments, each Lender (including the Lenders providing the Incremental Revolving Facility Commitments Commitments) will hold Loans and Participation Interests equal to its Commitment Percentage of all outstanding Loans and LOC Obligations (and accordingly the Loans Borrower shall pay any additional amounts required pursuant to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateSection 2.17).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans)▇▇▇▇▇, when originally made, are included in each Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 Incremental Lenders may, without the consent of any other Lender, enter into an amendment to any Credit Document (such Lenders, the an “Accepting LendersIncremental Amendment”) andto effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the case reasonable opinion 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to effect the extent provisions of this Section 2.5. The Administrative Agent is authorized to reasonably requested by enter into, on behalf of the Administrative AgentLenders, any Incremental Amendment. The provisions of this Section 2.5(d) shall have received legal opinionssupersede any other provisions of this Agreement and the Credit Documents, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under including Section 4.022.12 and Section 10.1.
Appears in 1 contract
Sources: Credit Agreement (Hyatt Hotels Corp)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Facility Commitments either, that at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which provided that the Administrative Agent shall withhold approval shall not be unreasonably withheld) unless if any of the L/C Issuers object to such Incremental Revolving Lender is a Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, an Affiliate and no Letters of a Lender or an Approved FundCredit may be requested by the Borrower under, such Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or Term B-1 Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one the Term B Loans or more existing Classes of Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the same Borrower), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as an existing Class of Term Loans determined in good faith by the Borrower) or (yz) 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 and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence (provided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B-1 Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, Term B-1 Loans or Other Term Loans) (provided that this clause (iv) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Other Incremental Revolving Loans shall rank pari passu Term B-1 Facility Maturity Date in right effect on the date of payment and of security with the Revolving Facility Loans, incurrence),
(v) the except as to pricing, final maturity date of any Other Incremental Revolving Loans shall be no earlier than 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 Revolving Facility Maturity Date andwith respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, except as subject to pricingclause (vi) and (vii) of this proviso, amortization be determined by the Borrower and final maturity datethe 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) then-current market terms (as determined in good faith by the same 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 Revolving Facility Loans Borrower) or (yz) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Maturity Date with respect to the Initial Revolving Loans; provided, further that the interest rate margin ,
(which shall be deemed viii) with respect to include all upfront or similar fees or original issue discount payable to all Lenders providing such any Other Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to Section 2.21(a) that (w) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower, (x) ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term B-1 Loans and/or on the Revolving Facility Loans; Second Amendment Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B-1 Loans and/or Revolving Facility Loans, respectively, on the Second Amendment Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time and the “SOFR floor” applicable to the initial Term B-1 Loans, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 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’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the conditions set forth in paragraphs (b) extent required by the relevant Incremental Assumption Agreement, no Event of Default shall have occurred and (c) of Section 4.01 shall be satisfied continuing or would result therefrom and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing or would result therefrom.
(d) On the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07 or Section 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans denominated in Dollars to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f”) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, will be established under this Agreement shall be deemed amended to the extent by implementing an Incremental Term Loan for such Lender (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class if such Lender is extending an existing Term Loan (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other such extended Term LoansLoan, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.“Extende
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosing Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBORSOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “LIBORSOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBOTerm SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBORSOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBORSOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(A) such 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
(A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clause (b) and (cd) 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 BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 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 the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Security Documents Collateral Documents, as applicable, and title endorsement bringdownsdate-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other applicable Extended Term Loans, Other Revolving Loans and/or Other Extended Revolving Credit Facility Commitments). Notwithstanding the foregoing; provided, no Permitted Amendment shall become effective unless the Administrative Agent, that (i) except as to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.inte
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 10.06, the applicable L/C Issuer and the Swing Line Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Lender, an Affiliate of a Revolving Lender or an Approved FundFund of a Revolving Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 20,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Loans on the same terms as the Committed Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an any existing Class of Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term Loans (“Other Incremental 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 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 that:
(i) any commitments to make additional Term Loans of an existing Class of Term Loans and/or additional Committed Revolving Loans shall have the same terms as such existing Term Loans or Committed Revolving Loans, respectively;
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.16 shall rank pari passu or or, at the option of the Borrowers, junior in right of payment and security with the existing Term Loans (provided, that if such Other Term Loans rank junior in right of security with the existing Term B Loans, the Liens securing such Other Term Loans shall be junior liens and, for the avoidance of doubt, such Other Term Loans shall not be subject to clause (iivii) below);
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ;
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of existing Term Loans with the longest weighted average life to maturity, Loans;
(ivv) the Other Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.16 shall rank pari passu in right of payment and of security with the Committed Revolving Facility Loans, ;
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Committed Revolving Loans and, except as to pricing, amortization and final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ; and
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.16 that ranks pari passu in respect right of any Other Incremental security with the initial Term Loan and/or Other Incremental Revolving Loan Loans, the All-in Yield shall be the same as that applicable to the Term Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin, Rate (or the “LIBOR floor” as provided in the following proviso) applicable to such Applicable Margin Term Loans shall be increased so such that after giving effect to such increase, the interest rate margin in respect Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loan or Other Incremental Revolving LoanLoans, as such floor shall only be included in the case may be (which calculation of the Term Yield Differential to the extent such floor is greater than the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term Loans shall be deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the “LIBOR floor” applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each Class of Rate applicable to such Term Loans or Revolving Facility Loans, respectivelythen outstanding. Each of the parties 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)10.01. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.16 and any such collateral and other documentation shall be deemed amendment “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, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment under clauses (a) and (b) above shall become effective under this Section 2.21 2.16 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clauses (a) and (b) and (c) of Section 4.01 4.02 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 Borrowers, (ii) no Event of Default shall have occurred and be continuing or would result therefrom and (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 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 request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 3.05 shall apply to any conversion of Eurocurrency Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.14 (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.16), make pursuant to one or more offers (each, a “Loan Modification Offer”) made from time to time by the Borrowers to all Lenders of any Class of Term Loans and/or Revolving Commitments, on a pro rata basis (based, in the case of an offer to the Lenders under any Class of one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting Revolving Facility, on the aggregate outstanding Revolving Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Commitments of such Affected Class as Revolving Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Commitment (such extended Revolving Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.16(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Loan Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and conditions thereof. The commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any L/C Issuer or the Swing Line Lender, such terms as shall promptly notify each Lender as be reasonably satisfactory to such L/C Issuer or the effectiveness of each Loan Modification AgreementSwing Line Lender, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of the Swing Line Lender and each L/C Issuer, participations in Swing Line Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other such Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Facility Commitment or upon or prior to the extent to reasonably requested by maturity date for any Class of Revolving Commitments.
(g) Upon the Administrative Agenteffectiveness of any such Extension, shall have received legal opinions, board resolutions the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or an officersuch Extending Lender’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Revolving Co
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Sources: First Lien Credit and Guaranty Agreement (Quality Care Properties, Inc.)
Incremental Commitments. (a) 60. The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 Facility Commitments, as the case may be, in their own sole discretion, all of the proceeds of which shall be used for working capital and general corporate purposes and for the payment of fees and expenses in connection with such Incremental Term Loan Commitments and/or Incremental Revolving Commitments; provided, provided that each Incremental Revolving Facility Lender shall providing a commitment to make revolving loans shall, to the extent the same would be required for an assignment under Section 9.04, be subject to the approval of the Administrative Agent Agent, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million 25,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 the initial Incremental Term Loans hereunder or term loans with terms identical to (and which shall together with any then outstanding Incremental Term Loans, as applicable, form a single Class of) the then initial Incremental Term Loans (if any) or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments, prepayment premiums and penalties and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the then outstanding Incremental Term Loans (if any) (“Other Incremental Term Loans”).
(b) 61. The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.:
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Incremental Commitments. (a) The Borrowers After the Closing Date has occurred, BGI may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (in each case, except as set forth in Section 1.07) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 Facility Commitments, as the case may be, in their own sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5.0 million 5,000,000 and a minimum amount of the Dollar Equivalent of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing (and which shall together with any then outstanding Initial Term Loans form a single Class of of) Initial Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be in the sole discretion of such Lender.
(b) The Borrowers BGI 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 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 that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or equally and ratably in right of security with the Initial Term Loans or, at the option of BGI, shall rank junior in right of payment and security with the Initial Term 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 a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (iiv) below) or be unsecured,
(iii) (A) the final maturity date of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans (provided that any such Permitted Incremental Term A Loans may not mature inside the then-applicable Revolving Facility Maturity Date), any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap, and Customary Bridge Financings) shall be no earlier than the Latest Initial Term Facility Maturity Date and, and (B) except as to pricing, amortization and fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by BGI and the Incremental Term Lenders in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as an existing Class of the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative AgentAgent (it being understood that, (iii) to the weighted average life to maturity extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Facility Maturity Date),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than any Permitted Incremental Term A Loans, any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap, and Customary Bridge Financings) shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Initial 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, Facility,
(v) the final maturity date of with respect to any Other Incremental Revolving Loans Term Loan, the All-in Yield shall be no earlier than as agreed by the Revolving Facility Maturity Date andrespective Incremental Term Lenders and BGI, except as that with respect to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity of any Other Incremental Revolving Loans shall be no shorter than Term Loan incurred on or prior to the remaining weighted average life to maturity date that is six (6) months following the Closing Date and in the form of a syndicated term loan B facility, in each case, secured by Liens on the Collateral that are pari passu with the Liens thereon securing the Initial Term Loans, the All-in Yield in respect of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Initial Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield (such excess, such 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 so such that after giving effect to such increase, the interest rate margin in respect Term Yield Differential shall not exceed 0.75%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher Floor being applicable to such Other Incremental Term Loan or Other Incremental Revolving LoanLoans, as such floor shall only be included in the case may be calculation of the Term Yield Differential to the extent such floor is greater than the Relevant Rate floor in effect for an Interest Period of three (which 3) months’ duration at such time, and, with respect to such excess, the Floor applicable to the outstanding Term Loans shall be deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the Floor applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each applicable to such Initial Term Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis or solely to the same extent that any existing Class of Term Loans participates on a greater than pro rata basis as compared to any other existing Class of Term Loans, on a greater than pro rata basis, than the Term Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than, (A) in respect of any Incremental Term Loan Commitments, BGI or (B) in respect of any Incremental Revolving Facility LoansCommitments, respectivelythe Borrowers) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of BGI or its Subsidiaries other than the Collateral. Each of the parties 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), including, for the avoidance of doubt, to (x) provide that the Lenders providing any Permitted Incremental Term A Loans shall have the benefit of the Financial Covenants and be included in the “Required Financial Covenant Lenders” and (y) make appropriate changes to Section 6.10, 7.01 and 9.08 with respect to the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ BGI’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on no Default or Event of Default shall exist immediately prior to and after giving effect thereto (subject, in the date case of such effectivenessany tranche of Incremental Term Loans or any Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.07); (ii) the conditions representations and warranties of BGI set forth in paragraphs this Agreement shall be true and correct in all material respects (bother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (ii) shall be limited to the Specified Representations, and in the case of any Limited Condition Acquisition (other than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders (in their capacities as such) and only to the extent that BGI or its applicable Subsidiary has the right (ctaking into account any applicable cure periods) to terminate its obligations under such acquisition agreement as a result of Section 4.01 shall a failure of such representations to be satisfied accurate; and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (iiiii) the Administrative Agent shall have received customary documents and 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, opinions consistent with those delivered on the Closing Date and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect effectiveness of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable each Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree BGI agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Barnes Group Inc)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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, provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent Agent, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender delayed or an Approved Fundconditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of 2021 Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the 2021 Term Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Doc#: US1:15347125v11
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time such Incremental Commitments are committed to) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approval 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 FundFund 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 $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans, ,
(iiiii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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 an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of payment and of security with the Initial Revolving Facility Loans, ,
(vvi) the final maturity date of any such Other Incremental 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, amortization and 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) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21, the All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 Repricing Effective Date shall be increased so such that after giving effect to such increase, the interest rate margin 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,
(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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or 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 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 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only 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 the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other such Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Facility Commitment or upon or prior to the extent to reasonably requested by maturity date for any Class of Revolving Facility Commitments.
(g) Upon the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.effectiveness of any su
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Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Initial Revolving Facility 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),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the twelve month anniversary of the 2021 Effective Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; 2021 Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the 2021 Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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;
(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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or 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 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 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and only with respect 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 and Commitments shall have (x) the same terms as an existing Class of the Accepting Lenders of the Affected Class Term Loans or (including any amendments necessary y) such other terms as shall be reasonably satisfactory to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the extent Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, such terms as shall be reasonably satisfactory to reasonably requested by the Administrative Agentsuch Issuing Bank or Swingline Lender, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered (v) any Extended Revolving Facility Commitments may participate on the Restatement Effective Date under Section 4.02.a pro rata basis or a less than pro rata basis (but not gre
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, solely in connection with clause (ii) of the definition of the term “Incremental Amount,” at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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, provided that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Facility Loans (“Other Incremental Revolving Facility 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 provided that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Facility Loans shall have the same terms as the Term B Loans or Initial Revolving Facility Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 will be established as a separate facility from the then existing Term Loans, shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Facility Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or, at the option of the Borrower, junior in right of payment and of security with the Initial Revolving Facility Loans (provided that if such Other Revolving Facility Loans rank junior in right of security with the Initial Revolving Facility Loans, such Other Revolving Facility Loans will be established as a separate facility from the then existing Revolving Facility Loans, and shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Facility Loans, there shall be no amortization and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.20 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Repricing Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Repricing Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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,
(viii) (A) such Other Revolving Facility 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 Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (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 Loans that is not a Loan Party, and, if such Other Incremental Term Loan or Other Incremental Revolving LoanLoans are secured, as the case may shall only be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelysecured by Collateral. Each of the parties 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(e9.09(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.20 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default with respect to the Borrower under Sections 7.01(b), (h) or (i) 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 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 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.20), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the scheduled amortization in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 the 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees and only with respect any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.20(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 and Commitments shall have (x) the same terms as an existing Class of the Accepting Lenders of the Affected Class Term Loans or (including any amendments necessary y) such other terms as shall be reasonably satisfactory to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless 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 extent remaining Weighted Average Life to reasonably requested 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 Administrative AgentBorrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have received legal opinions, board resolutions and/or (x) the same terms as an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.existing Class of Revolving Facility Commitments or (y) have such other terms as shall be rea
Appears in 1 contract
Sources: First Lien Credit Agreement
Incremental Commitments. (a) The Borrowers may, by By written notice to the Administrative Agent from time to time, (i) the German Borrower may request Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments and (ii) the U.S. Borrower may request Incremental Revolving Facility Commitments and/or, with the consent of the Administrative Agent, Incremental Term Loan Commitments and/or Incremental Revolving Facility Synthetic L/C Commitments, as applicable, in each case 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 Lenders, Incremental Revolving Facility Lenders and/or Incremental Synthetic L/C Lenders (each of which may include any existing Lender) ), as applicable, willing to provide such Incremental Term Loans and/or Loans, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent and the Issuing Bank (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 Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Revolving Facility Synthetic L/C Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Revolving Facility Synthetic L/C Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans Incremental Term Loans with pricing pricing, maturity and/or amortization terms identical to an existing Class a Tranche of Existing Term Loans or commitments to make term loans with pricing and pricing, maturity and/or amortization terms different from one or more existing Classes a Tranche of Existing Term Loans (“Other Incremental Term Loans”), (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be additional commitments to make Revolving Facility Loans with pricing and/or maturity terms identical to the Revolving Facility Loans in effect on the Amendment Effective Date or commitments to make revolving loans with pricing and/or maturity terms different from the Revolving Facility Loans in effect on the Amendment Effective Date (“Other Revolving Facility Loans”) and (iv) in the case of Incremental Synthetic L/C Commitments, whether such Incremental Synthetic L/C Commitments are to be Synthetic L/C Commitments or commitments to make credit-linked deposits with pricing terms different from the Credit-Linked Deposits (“Other Credit-Linked Deposits”).
(b) The applicable Borrowers and each applicable Incremental Term Lender, Incremental Synthetic L/C 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 Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments shall specify the terms of the applicable Incremental Term Loans, Incremental Revolving Facility Loans and/or Incremental Revolving Facility CommitmentsSynthetic Credit-Linked Deposits to be made thereunder; provided, provided that (i) the Other Incremental Term Loans, Other Revolving Facility Loans and/or Other Credit-Linked Deposits shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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) Loans and the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date Credit-Linked Deposits and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans, the Revolving Facility Loans in effect at such time or the Credit-Linked Deposits, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of (a) any Other Term Loans or Other Credit-Linked Deposits, shall be no earlier than the latest Term Facility Maturity Date of any then existing Term Loans and (vib) any Other Revolving Facility Loans shall be no earlier than the latest Revolving Facility Maturity Date then in effect, (iii) the weighted average life to maturity of (a) the Other Term Loans and Other Credit-Linked Deposits, as applicable, shall be no shorter than the remaining weighted average life to maturity of any Tranche of the then existing Term Loans and Credit-Linked Deposits, as applicable, and (b) the Other Incremental Revolving Facility Loans shall be no shorter than the remaining weighted average life to maturity of any other Class Tranche of the then existing Revolving Facility Loans; provided, further that Loans and (iv) the interest rate margin (which Other Revolving Facility Loans shall be deemed to include all upfront require no scheduled amortization or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable mandatory commitment reductions prior to the Term Loans and/or the latest Revolving Facility Loans; except that the interest rate margin Maturity Date then in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyeffect. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 of the 2006 Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Loans, Revolving Facility Loans in respect of Incremental Revolving Facility Commitments and/or obligations of the German Borrower in respect of Incremental Synthetic L/C Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders, Incremental Revolving Facility Lenders or Incremental Synthetic L/C Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and B Loans, Revolving Facility Loans and Synthetic L/C Commitments and (iii) the Borrowers Senior Secured Leverage Ratio shall be in be, on a Pro Forma Compliance Basis after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans and deposits to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no greater than 3.75 to 1.00.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all (i) all Incremental Term Loans (other than Other Incremental Term Loans)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B Loans on a pro rata basis, basis and (ii) all Revolving Facility Loans (other than Other Revolving Facility Loans) in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans of the applicable Borrower on a pro rata basis. The Borrowers agree Each Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required costs incurred by the Administrative Agent any Lender to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.10(d), 2.11(a) or 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) made from time to time by any Borrower to all Term Facility Lenders, all Synthetic L/C Lenders and/or all Revolving Facility Lenders, on a pro rata basis (based, in the Lenders case 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable offer to the BorrowersTerm Facility Lenders, as on the aggregate outstanding Term Loans, in the case may be. 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). Permitted Amendments shall become effective only with respect an offer to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Synthetic L/C Lenders, on the “Accepting Lenders”) aggregate outstanding Credit-Linked Deposits and, in the case of any Accepting an offer to the Revolving Facility Lenders, on the aggregate outstanding Revolving Facility Commitments, as applicable) 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, only Credit-Linked Deposits and/or Commitments and to otherwise modify the terms of such Lender’s Loans, Credit-Linked Deposits 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, Credit-Linked Deposits 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 Term Facility Lenders, that all the Term Loans, in the case of an offer to the Synthetic L/C Lenders, that all the Credit-Linked Deposits and, in the case of an offer to the Revolving Facility Lenders, that all the Revolving Facility Commitments, are, in each case, offered to be extended for the same amount of time (for this purpose neither interim amortization of the Term Loans in an annual amount of up to 1% of the original principal amount thereof nor interim reductions in Credit-Linked Deposits in an amount consistent with the terms of the existing Credit-Linked Deposits shall 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 any Borrower and any such Lender (an “Extending Lender’s Loans and Commitments ”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (in the case of an extension of an existing Term Loan (such Affected Class as to which extended Term Loan, an “Extended Term Loan”), an Incremental Credit-Linked Deposit (in the case of an extension of an existing Credit-Linked Deposit (such Lender’s acceptance has been madeextended Credit-Linked Deposit, an “Extended Credit-Linked Deposit”) or an Incremental Revolving Facility Commitment for such Lender (in the case of an extension of an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans, Extended Credit-Linked Deposits and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans, Extended Credit-Linked Deposits and/or Extended Revolving Facility Commitments, as applicable; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the applicable Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans and the Extended Credit-Linked Deposits shall have (x) the same terms as a Tranche of then existing Term Loans or then existing Credit-Linked Deposits, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans or Extended Credit-Linked Deposits 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 Existing Term Loans, (iv) except as to interest rates, fees and conditions thereof. The final maturity, any Extended Revolving Facility Commitment shall be (x) a Revolving Facility Commitment to make revolving loans with the same terms as then existing Revolving Facility Loans or (y) a Revolving Facility Commitment to make revolving loans with terms as shall be reasonably satisfactory to the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementand (v) any Extended Term Loans, Extended Credit-Linked Deposits 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 or commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Extended Term Loans, Other Extended Credit-Linked Deposits and/or Extended Revolving Loans and/or Other Revolving Credit CommitmentsFacility Commitments evidenced thereby as provided for in Section 9.08(e). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested Any such deemed amendment may be memorialized in writing by the Administrative AgentAgent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan, the applicable Synthetic L/C Lender’s Credit-Linked Deposit will be automatically designated an Extended Credit-Linked Deposit and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment, as applicable. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan , (ii) if such Extending Lender is extending a Credit-Linked Deposit, such Extending Lender will be deemed to have an Incremental Credit-Linked Deposit having the terms of such Extended Credit-Linked Deposit and, (iii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans, Extended Credit-Linked Deposits and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan, Extended Credit-Linked Deposits or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment; provided that any tranche of Extended Term Loans, Extended Credit-Linked Deposits or Extended Revolving Facility Commitments, as the case may be, shall have received legal opinionsbe in a minimum principal amount of $25.0 million, board resolutions (iii) any Extending Lender may extend all or any portion of its Term Loans, Credit-Linked Deposits and/or an officer’s certificate consistent with those delivered on Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the Restatement Effective Date under Section 4.02.case of over participation) (including the extension of any Extended Term Loan, Extended Credit-Linked Deposit and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan, Credit-Linked Deposit or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan, Extended Credit-Linked Deposit or Extended Revolving Facility Commitment implemented thereby, (v) no consent of any Lender or Agent shall b
Appears in 1 contract
Sources: Amendment Agreement (Momentive Performance Materials Inc.)
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time of such request 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, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 2.5 million and a minimum amount of $25.0 10.0 million or equal to the remaining Incremental AmountAmount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (A) commitments to make additional Revolving Loan Commitments Facility Loans on the same terms as such Revolving Facility Loans in effect on the Closing Date (the “Initial Revolving Facility Loans”) or (B) commitments to make revolving loans with pricing terms, final maturity date and/or amortization upfront or similar fees or other terms different from the Initial Revolving Facility Loans (such commitments, the “Other Incremental Revolving LoansFacility Commitments”), and (iv) in such revolving loans, the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Revolving Facility Loans”).
(b) The applicable Borrowers 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 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 that:
(i) the Other Incremental Term Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Initial Revolving Facility Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, 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, (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 dateand/or upfront or similar fees, shall have (x) the same terms as the Initial Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(viii) the weighted average life to final maturity date of any Other Incremental Revolving Facility Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Maturity Date then in effect for the Initial Revolving Facility Loans; provided, further that ,
(iii) the interest rate margin Other Revolving Facility Loans may participate on a pro rata basis or a less than pro rata basis (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanbut not greater than a pro rata basis) in respect of comparison to the Initial Revolving Facility Loans in any Other Incremental Term Loan and/or Other Incremental Revolving Loan voluntary or mandatory prepayment or commitment reduction hereunder (except, in each case, at maturity),
(iv) the All-in Yield shall be the same as that applicable to the Term Loans and/or the Initial Revolving Facility Loans; , except that the interest rate margin All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Revolving Facility Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for All-in Yield in respect of any other Class of Term Initial Revolving Facility Loans and/or (including Tranche A Revolving Facility Loans and Tranche B Revolving Facility Loans, respectively, ) by no more than 1/2 of 10.50% (it being understood that any or, in each case, if 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 three-year life to maturity), or if it does Other Revolving Facility Loans do so exceed such Applicable MarginAll-in Yield (such difference, such the “Yield Differential”) then the Applicable Margin applicable to all Initial Revolving Facility Loans shall be increased so such that after giving effect to such increase, the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which Yield Differential shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelynot 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 2.20 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrowers and furnished to the other parties hereto, and
(v) any additional Revolving Facility Loans shall be ratably divided into Tranche A Revolving Facility Loans and Tranche B Revolving Facility Loans.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.20 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the BorrowersIntermediate Holdings, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as 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 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 request to assure that the Incremental Term additional Revolving Facility Loans and/or the Other Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed contemplated by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the then existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments Commitment, Intermediate Holdings and its Subsidiaries shall be in compliance with the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied Financial Performance Covenant on such datea Pro Forma Basis.
(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 additional Revolving Facility Loans in respect of Incremental Term Loans Commitments (other than Other Incremental Term Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Tranche A Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding and Tranche B Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans or CDOR Rate Loans, as applicable to ABR Rate Loans or Canadian Prime Rate Loans, as applicable, as reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.20), make pursuant to one or more offers (each, made from time to time by a “Loan Modification Offer”) Borrower to all the Lenders of one or more Classes any Class of Loans and/or Commitments, on a pro rata basis (based on the aggregate outstanding Commitments under such Class) and on the same terms (each Class subject “Pro Rata Extension Offers”), such Borrower is hereby permitted to such a Loan Modification Offer, an “Affected Class”) consummate transactions with individual Lenders from time to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant time to procedures reasonably specified by extend the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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 maturity date of such noticeLender’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 relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments of such Class). Permitted Amendments shall become effective only with respect to For the Loans and Commitments avoidance of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lendersdoubt, the reference to “Accepting Lenders”) andon the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Accepting LenderClass of Revolving Facility Commitments, only that all of the Revolving Facility Commitments 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 Lender’s Loans and Commitments extension of such Affected Class as are the same. Any such extension (an “Extension”) agreed to which between such Borrower and any such Lender (an “Extending Lender’s acceptance has been made”) will be established under this Agreement by implementing an Incremental Commitment for such Lender (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”).
(f) The Borrowers applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Revolving Facility Commitments; provided, that (i) except as to pricing, fees and final maturity (which shall be determined by such Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (A) the same terms and conditions thereof. The as an existing Class of Revolving Facility Commitments or (B) have such other terms as shall be reasonably satisfactory to the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementand (ii) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 and only the Borrowers and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable 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, such Extending Lender will be deemed to have an Incremental 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 2.20), (i) the aggregate amount of Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no 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 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 Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time (other than (x) notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Revolving Facility Commitment implemented thereby and (including any amendments necessary to treat y) the Loans and Commitments satisfaction of the Accepting Lenders conditions set forth in clauses (b) and (c) of Section 4.01 and the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested receipt by the Administrative AgentAgent of a certificate to that effect dated as of the effective date of the Extension and executed by a Responsible Officer of Intermediate Holdings), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all 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 (vii) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Facility Commitments beyond the applicable maturity date of the applicable Commitments that were extended by such Extended Revolving Facility Commitments unless it shall have received legal opinionsconsented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the corresponding Pro Rata Extension Offer; provided, board resolutions and/or an officer’s certificate consistent that the applicable Borrower shall cooperate with those delivered on the Restatement Effective Date under Section 4.02Administrative 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.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Momentive Performance Materials Inc.)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or (other than upfront fees or original issue discount) and amortization terms identical to an to, as applicable, the Term A Loans or the Term B Loans (which may be part of the applicable existing Class of Term Loans Class) or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term A Loans and the Term B Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest date specified in clause (a) of the definition of Term Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing the 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 the then-outstanding Class of Term Loans with the longest weighted average life to maturityA 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 datedate 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, and (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; provided, further that (vii) 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 Incremental Revolving Loans and the Other Incremental Term Loan and/or Other Incremental Revolving LoanLoans shall be denominated in Dollars and borrowed by the Borrowers and (viii) in with respect of to any Other Incremental Term Loan and/or Other or Incremental Revolving Term Loan incurred prior to the twelve month anniversary of the Restatement Effective Date that ranks pari passu in right of security with the Term B Loans and that, in each case, has term B loan-style amortization provisions, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Restatement Effective Date, except that the interest rate margin All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other or Incremental Revolving Loan) Term Loan may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Restatement Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such the “Term B 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 so such that after giving effect to such increase, the interest rate margin in respect Term B Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term B Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loan Loans or Other Incremental Revolving Term Loan, as such floor shall only be included in the case may be (which calculation of the Term B 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 deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the “LIBOR floor” applicable to such Other Incremental Term Loans or Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than prior to any increase in the Applicable Margin for each Class of applicable to such Term B Loans or Revolving Facility Loans, respectivelythen outstanding. 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 in Section 9.08(e10.08(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 amendment “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, 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 BorrowersCompany, (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 and title endorsement bringdownsDocuments) 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) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 thereunder and the application of the proceeds therefrom as if made and applied on such datedate (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 (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of outstanding 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or the 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 Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders of the Affected Class Incremental Amount, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other ii) no Extended Term Loans, Other Loan or Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Facility Commitment is required to
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of all Incremental Revolving Facility Commitments that will exist after giving effect to the request (and which shall not exceed $250 million), (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iiiiv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Revolving Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viii) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyMaturity Date. 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 Revolving Loan Commitments and/or 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of 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 Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing First Restatement Effective Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably 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 Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, either (x) the total principal amount of the Revolving Facility Commitments and and, without duplication, 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 Borrowing of 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 but in each case, less any Revolving Facility Commitments and Incremental Revolving LoansFacility Commitments of each Defaulting Lender), when originally made, are included in each Borrowing aggregated with the principal amount 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 Senior Secured First Lien Notes and the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth (i) the terms and conditions principal amount of the requested Permitted Amendment and (ii) the date on which such Permitted Amendment is requested to become effective (which Additional Obligations, shall not be less than 10 Business Days nor more than 30 Business Days after the date of such notice). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.exceed $1,450 million or
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Tranche 1 Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Tranche 1 Revolving Facility Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) the Other Incremental any commitments to make additional Term B Loans, Term B-2-3 Loans and/or additional Tranche 1 Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with have the same terms as the Term B Loans, Term B-2-3 Loans or Tranche 1 Revolving Facility Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Tranche 1 Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Tranche 1 Revolving Facility Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Tranche 1 Revolving Facility Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Tranche 1 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B-3 Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosingAmendment No. 5 Effective Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B-3 Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, ClosingAmendment No. 5 Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-3 Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-3 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B-3 Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000735,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B-3 Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Tranche 1 Revolving Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clause (b) and (cd) 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 BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 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 the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Security Documents Collateral Documents, as applicable, and title endorsement bringdownsdate-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Extended Term Loans and and/or Extended Revolving Facility Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments)such Extending Lender. Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers After the Closing Date has occurred, any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which which, in each case, may include any existing LenderLender (it being understood that no Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but 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 Facility Commitments, as the case may be, in their own sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5.0 million 5,000,000 and a minimum amount of the Dollar Equivalent of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing (and which shall together with any then outstanding Initial Term Loans form a single Class of of) Initial Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers applicable 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 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 provided that:
(i) any (x) commitments to make additional Initial Term Loans shall have the same terms as the Initial Term Loans, and shall form part of the same Class of Initial Term Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or equally and ratably in right of security with the Initial Term Loans or, at the option of the applicable Borrower, shall rank junior in right of payment and security with the Initial Term 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 (iiand 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 andapplicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii))), (y) no Incremental Facility shall mature on or prior to the latest Revolving Facility Maturity Date and (z) except as to pricing, amortization and fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the Incremental Term Lenders in their sole discretion), such Other Incremental Term Loans shall have (x1) the same terms as an existing Class of the Initial Term Loans or (y2) such other terms as shall be reasonably satisfactory to the Administrative AgentAgent (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 (iiia) 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 Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life remaining Weighted Average Life to maturityMaturity (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), (ivII) the Other Incremental Revolving Term Loans shall rank pari passu in right an amount not to exceed 50% of payment 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 security with no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the Revolving Facility Loans, requirements of this clause (iv))),
(v) the final maturity date of with respect to any Other Incremental Revolving Loans Term Loan, the All-in Yield shall be no earlier than as agreed by the Revolving Facility Maturity Date andrespective Incremental Term Lenders and the applicable Borrower, except as to pricing, amortization and final maturity date, shall have (x) that the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity All-in Yield in respect 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; 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 Incremental Term Loan and/or that is Other Incremental Revolving Loan) 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 any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Initial Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Initial Term Loans shall be increased so such that after giving effect to such increase, the interest rate margin in respect Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loan or Other Incremental Revolving LoanLoans, as such floor shall only be included in the case may be (which calculation of the Term Yield Differential to the extent such floor is greater than the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the “LIBOR floor” applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each Class of 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 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 Incremental Revolving Facility Loans, respectivelyCommitments,
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of Parent or its Subsidiaries other than the Collateral; and
(ix) the Parent shall be in Pro Forma Compliance with the Financial Covenants (if then applicable). Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Parent’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on no Default or Event of Default shall exist; provided, that in the date 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 effectivenesstranche of Incremental Term Loans agree, the conditions foregoing clause (i) and clause (ix) of the preceding clause (b) shall be tested at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Borrowers set forth in paragraphs this Agreement shall be true and correct in all material respects (bother 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 (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 Borrowers, (iiiii) the Administrative Agent shall have received customary documents and 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, opinions consistent with those delivered on the Closing Date and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect effectiveness of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable each Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Parent agrees that Section 2.16 shall apply to any conversion of Eurocurrency Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the InitialTranche 1 Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the InitialTranche 1 Revolving Facility Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) the Other Incremental any commitments to make additional Term B Loans, Term B-2 Loans and/or additional InitialTranche 1 Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with have the same terms as the Term B Loans, Term B-2 Loans or InitialTranche 1 Revolving Facility Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the InitialTranche 1 Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the InitialTranche 1 Revolving Facility Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the InitialTranche 1 Revolving Facility Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the InitialTranche 1 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosing Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(A) such 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 InitialTranche 1 Revolving Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(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.
(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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.in
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Company may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Credit Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances, as the case may be, in their own sole discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Facility Credit Lender (which is not an existing Lender) shall be subject to the approval requirements 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 FundSection 9.07. Such notice shall set forth (iA) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (iiB) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments are requested to become effective (the “Increased Amount Date”), ) and (iiiC) in the case of (i) whether such Incremental Revolving Facility Commitments, Term Commitments are to be commitments to make term advances (“Other Term Advances”) and/or (ii) whether such Incremental Revolving Facility Credit Commitments are to be Revolving Loan Credit Commitments or commitments to make revolving loans advances with pricing and/or amortization terms different from the Revolving Loans Credit Advances (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term LoansCredit Advances”).
(b) The Borrowers 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 Facility Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lenderrequest. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances to be made thereunder, and shall be made (x) on terms and conditions agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the Agent; provided, that (i) the Other Incremental Term Loans Advances and Other Revolving Facility Advances shall rank pari passu or junior in right of payment and of security with the Term B LoansAdvances and Revolving Credit Advances, as applicable, (ii) the final maturity date of (A) any Other Incremental Term Loans Advances shall be no earlier than the Latest Maturity scheduled Termination Date and, except applicable to the Term B-1 Facility and Euro Term B-1 Facility (as to pricing, amortization and final maturity date, shall have set forth in clause (xc) of the same terms as an existing Class definition of Term Loans or “Termination Date”) and/or (yB) such other terms as any Other Revolving Facility Advances shall be reasonably satisfactory no earlier than the scheduled Termination Date applicable to the Administrative AgentRevolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Incremental Term Loans Advances 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 maturityB-1 Advances or Euro Term B-1 Advances, (iv) the Other Incremental Revolving Loans Facility Advances shall rank pari passu in right of payment and of security with require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Facility LoansCredit Facilities (under clause (a)(i) of the definition of “Termination Date”), (v) the final maturity date of any Other no Default shall have occurred and be continuing or would result from such Incremental Term Advances and/or Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Credit Advances and (vi) in 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; provided, further event 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Other Term Loans and/or Advances or Other Revolving Facility LoansAdvances is more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, respectivelyas applicable, by then the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, shall be increased to the extent necessary so that the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances is no more than 1/2 of 1% 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable; provided further, that in determining the Applicable Margin applicable to the Term Advances, Revolving Credit Advances, Other Term Advances and Other Revolving Credit Advances, (it being understood that any such increase may take the form of x) original issue discount (“OID”), ) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by such Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), (y) customary arrangement or if it does so exceed commitment fees payable to the arrangers (or their affiliates) of such Applicable Margin, such Applicable Margin loans shall be increased so that excluded and (z) if the interest rate margin in respect Eurocurrency Rate “floor” applicable to the Other Term Advances or Other Revolving Facility Advances is higher than the Eurocurrency Rate “floor” applicable to the Term B-1 Advances, Euro Term B-1 Advances or Revolving Credit Advances, as applicable, then the amount of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which difference shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than be an increase in the Applicable Margin for each Class the Other Term Advances or Other Revolving Facility Advances for purposes of determining compliance with this clause (vi) (it being agreed, however, that the Company may elect to satisfy, at least in part, the requirements of this clause (vi) by increasing the Eurocurrency Rate “floor” applicable to the relevant existing Term Loans B-1 Advances, Euro Term B-1 Advances or Revolving Facility Loans, respectivelyCredit Advances to a rate that is no greater than the Eurocurrency Rate “floor” applicable to the applicable Other Term Advances and Other Revolving Credit Advances). The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments evidenced thereby as provided for in Section 9.08(e)thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Company’s consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties heretoPersons then party to this Agreement.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Credit Commitment shall become effective under this Section 2.21 2.04 unless (i) on the date of such effectiveness, the conditions representations and warranties set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied true and correct and the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowersapplicable 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, and consistent with those delivered on the Closing Date under Section 3.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Collateral Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans Advances and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Advances are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans Advances and Revolving Facility Loans Credit Advances, and (iii) the Borrowers shall would be in Pro Forma Compliance after 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 Loan Commitment and/or Incremental Revolving Facility Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the Loans 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 Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans Advances and/or Incremental Revolving Facility Advances (other than Other Incremental Term LoansAdvances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans Advances or Revolving Facility Advances 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Cash Flow Revolving Facility Maturity Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed that the Incremental Amount from be provided by one or more Incremental Term Lenders and/or Incremental Cash Flow Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Cash Flow Revolving Facility Commitments, as the case may be, Commitments in their own discretion; provided, provided that each Incremental Cash Flow Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Cash Flow Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Cash Flow Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amountmillion), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Cash Flow Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Loan Commitments are to be Cash Flow Revolving Loan Facility Commitments or commitments to make revolving loans with pricing terms, final maturity date, upfront or similar fees and/or amortization terms participation in prepayments different from the Cash Flow Revolving Facility Loans (“Other Incremental Cash Flow Revolving Loans”), . If the initial pricing terms on the requested Other Cash Flow Revolving Loans (which shall be equal to the sum of (x) the margin above Adjusted LIBO Rate on the requested Other Cash Flow Revolving Loans and (ivy) in any original issue discount or upfront fees paid to all lenders providing such Other Cash Flow Revolving Loans with respect to the case requested Other Cash Flow Revolving Loans divided by the lesser of Incremental Term Loan Commitments, whether (A) the average life to maturity of such Incremental Term Loan Commitments are to be commitments to make term loans with Other Cash Flow Revolving Loans and (B) four) exceeds the pricing and/or amortization terms identical to an of any of the then existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Cash Flow Revolving Facility Loans (“which shall be equal to the sum of (x) the Applicable Margin then in effect for such existing Cash Flow Revolving Facility Loans that are Eurocurrency Cash Flow Revolving Loans and (y) any original issue discount or upfront fees payable to all Revolving Facility Lenders with respect to such existing Cash Flow Revolving Facility Loans, divided by the lesser of (A) the average life to maturity of such existing Cash Flow Revolving Facility Loans and (B) four) by more than 50 basis points, then the applicable margin then in effect for each such existing Cash Flow Revolving Facility Loan shall automatically be increased to the extent necessary such that the pricing terms (as defined above) of each such existing Cash Flow Revolving Facility Loans is equal to the pricing terms of the requested Other Incremental Term Cash Flow Revolving Facility Loans minus 50 basis points, effective upon the making of the requested Other Cash Flow Revolving Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Cash Flow 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 Commitment of such Incremental Term Lender and/or Incremental Cash Flow Revolving Facility Commitment of such Incremental Cash Flow Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Cash Flow Revolving Facility Commitments; provided, provided that (i) the Other Incremental Term Cash Flow Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Cash Flow Revolving Facility Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, participation in prepayments and/or upfront or similar fees, shall have (x) the same terms as an existing Class of Term Loans the Cash Flow Revolving Facility Loans, or (y) intercreditor arrangements and such other terms 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, (vii) the final maturity date of any Other Incremental Cash Flow Revolving Loans shall be no earlier than the Cash Flow Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agentthen in effect, and (viiii) the weighted average life to maturity of any Other Incremental Cash Flow Revolving Loans shall be no shorter may participate on a pro rata basis or a less than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; provided, further that the interest rate margin pro rata basis (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loanbut not greater than a pro rata basis) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront voluntary or similar fees mandatory prepayment or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelycommitment reduction hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption AgreementAgreement in accordance with its terms, this Cash Flow Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Revolving Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for thereby, notwithstanding anything to the contrary set forth in Section 9.08(e)10.08 of this Cash Flow Credit Agreement. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Cash Flow 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 both before and after such effectiveness, (bx) there is no Default or Event of Default and (cy) of Section 4.01 the Borrower shall be satisfied and 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 the BorrowersBorrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iiiii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Cash Flow Revolving Facility Loans and/or Other Cash Flow Revolving Facility Loans in respect of the Incremental Cash Flow Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Cash Flow Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Cash Flow Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 Cash Flow Revolving Facility Loans in respect of Incremental Term Loans Cash Flow Revolving Facility Commitments (other than Other Incremental Term Cash Flow Revolving Loans), when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Cash Flow Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Verso Paper Corp.)
Incremental Commitments. (a) The Borrowers U.S. Borrower or the Dutch Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving Facility CommitmentsLoans, as the case may be, in their own discretion; provided, provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 1.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iva) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and and/or amortization terms different from one or more an existing Classes Class of Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Term Revolving Facility Commitments are to 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 Canadian Tranche Revolving Facility Loans, European Tranche Revolving Facility Loans and U.S. Tranche Revolving Facility Loans (“Other Revolving Facility Loans”).
(b) The Borrowers U.S. 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 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 CommitmentsLoans to be made thereunder; provided, provided that (i) the Other Incremental Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Existing Term B 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 Incremental Term Loans shall be no earlier than the Latest latest Term Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as an of any then existing Class of Term Loans or and (yb) such other terms as any Other Revolving Facility Loans shall be reasonably satisfactory 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 Administrative Agentaggregate 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 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, and (iv) the Other Incremental Revolving Facility Loans shall rank pari passu in right of payment and of security with require no scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Loans, (v) the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the latest Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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 Loansthen in effect; provided, 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 Incremental Term Loan and/or Other Incremental Revolving Facility Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Facility Loan shall not be the same as greater than that applicable to the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility LoansCommitment; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental 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 Incremental Term Loan and/or Other Incremental Revolving Facility Loan) may exceed the Applicable Margin for any other Class of the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility LoansCommitment (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), or if it does so exceed such Applicable MarginMargin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Facility Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of the Extended Maturity Term Loans or the Committed Extended Revolving Facility LoansCommitment, respectivelyrespectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Extended Maturity Term Loans and/or the Committed Extended Revolving Facility Commitment). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility 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 Borrowers’ U.S. Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 Article IV shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the BorrowersU.S. 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, and consistent with those delivered on the Closing Date under Section 4.02 of the 2005 Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall U.S. Borrower would be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans and/or Incremental Revolving Facility Loans (other than Other Incremental Term Loans or Other Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans or Revolving Facility Loans under the same Tranche 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 Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.11(d), 2.12(a) or 2.19(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) made from time to time by any Borrower to all Lenders, on a pro rata basis (based on the aggregate outstanding Term Loans and Revolving Facility Commitments) and on the same terms (“Pro Rata Extension Offers”), each Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of one or more Classes of such Lender’s Loans and/or Commitments (each Class subject and to otherwise modify the terms of such a Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments (as defined in paragraph (g) below) Lender’s Loans and/or Commitments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment 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 (ii) for this purpose interim amortization of the date on which such Permitted Amendment is requested Term Loans in an annual amount of up to become effective (which 1% of the original principal amount thereof shall not be less than 10 Business Days nor more than 30 Business Days after taken into account) and that the date of such notice). Permitted Amendments shall become effective only with respect to the Loans interest rate changes 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 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the applicable Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as a Class of existing Term Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date for the Existing Term Loans, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Existing Term Loans, (iv) except as to interest rates, fees and final maturity, any Extended Revolving Facility Commitment shall be a Revolving Facility Commitment with the same terms as a Class of Existing Revolving Facility Loans 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 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 terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as interest rate margins applicable to the effectiveness Extended Maturity Term Loans shall be increased to the extent necessary to achieve the foregoing), (B) the interest rate margins for any Extended Revolving Facility Commitment shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Committed Extended Revolving Facility Commitment plus 1/2 of each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatforegoing clauses (A) and (B), upon the interest rate margins applicable to any Extended Maturity Term Loan or Extended Revolving Facility Commitment shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Extended Term Loans or Extended Revolving Facility Commitments based on an assumed four-year life to maturity). Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitmentsprovided for in Section 9.08(e). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested Any such deemed amendment may be memorialized in writing by the Administrative AgentAgent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, shall 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 received legal opinionsan Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, board resolutions and/or such Extending Lender will be deemed to have an officer’s certificate consistent with those delivered on Incremental Revolving Facility Commitment having the Restatement Effective Date under 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 4.02.2.21), (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; provided that any tranche of Extended Term Loans or Extended R
Appears in 1 contract
Sources: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.)
Incremental Commitments. (a) The Borrowers may, Borrower may by written notice to the Administrative Agent from time elect to timerequest (x) prior to the Revolving Commitment Termination Date, request an increase to the existing Revolving Commitments (each, an “Incremental Revolving Commitment”, and any such increase, an “Incremental Revolving Facility”) and/or (y) the establishment of one or more new term loan commitments (each, an “Incremental Term Loan Commitments and/or Commitment” (and together with the Incremental Revolving Facility Commitments, the “Incremental Commitments”), and any such increase, an “Incremental Term Facility” 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 any Incremental Term Commitment the primary purpose of which is to finance a Permitted Acquisition or similar Investment permitted by this Agreement, whose consummation is not conditioned on the availability of, or on obtaining, financing, the Incremental Ratio Amount may, at the Borrower’s option, be tested on a pro forma basis giving effect to such Permitted Acquisition or similar Investment, as applicable, in an amount not to exceed at the Incremental Amount from one time the definitive agreements for such Permitted Acquisition or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such similar Investment, as applicable, are entered into rather than at the time of incurrence of the Incremental Term Loans and/or Incremental Revolving Facility Commitments(and, in connection with any subsequent calculation of such ratio or any incurrence ratio under Section 7.01(a)(xxiii) prior to the consummation or termination of such Permitted Acquisition or similar Investment, as the case may beapplicable, in their own discretion; provided, that each Incremental Revolving Facility Lender such ratio shall be subject calculated on a pro forma basis giving effect to such Permitted Acquisition or similar Investment, as applicable, and other transactions in connection therewith (including any incurrence of Indebtedness and the approval use of the Administrative Agent (which approval shall not be unreasonably withheld) unless proceeds thereof)). Each such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth specify (i) the amount of date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (shall be effective, which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) date not less than 10 Business Days after the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver notice is delivered to the Administrative Agent an Incremental Assumption Agreement and (or such other documentation shorter period as the Administrative Agent shall reasonably specify may be agreed 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 extentits sole discretion) 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) the date on which identity of each Lender to whom the Borrower proposes any portion of such Permitted Amendment is requested Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to become effective 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 shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (which shall not provided that such amount may be less than 10 Business Days nor more than 30 Business Days after $10,000,000 if such amount represents all remaining availability under the date aggregate limit in respect of such noticeIncremental Commitments set forth in above). Permitted Amendments shall become effective only The proceeds in connection 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall Incremental Commitment may be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested used by the Administrative AgentBorrower and its Subsidiaries for working capital and other general corporate purposes, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on including the Restatement Effective Date under Section 4.02financing of Permitted Acquisitions and other Investments and any other use not prohibited by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approval 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 FundFund 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 $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Initial Term B Loans or Term B-1 Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one the Initial Term B Loans or more existing Classes of Term B-1 Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Initial Term B Loans, Term B-1 Loans and/or additional Initial Revolving Loans shall have the same terms as the Initial Term B Loans, Term B-1 Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Term B Loans, ,
(iiiii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments and ranking as to security reductions (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 an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of payment and of security with the Initial Revolving Facility Loans, ,
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of Section 2.21, the All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Initial Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Initial Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Initial Term B Loans and the Term B-1 Loans shall be increased so such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that, (A) 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 Initial Term B Loans and the 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 Initial Term B Loans and the Term B-1 Loans then outstanding; and (B) for the avoidance of doubt, any increase in the margin or “LIBOR floor” in respect of the Initial Term B Loans as a result of this clause (vii) shall apply to the Term B-1 Loans to the same extent,
(viii) with respect to any commitments to make any such Other Revolving Loans incurred pursuant to clause (a) of Section 2.21, 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 and the Second Incremental Effective Date, except that the interest rate margin 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 and the Second Incremental Effective 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 Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitmentsprovided for in Section 9.08(e). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested Any such deemed amendment may be memorialized in writing by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officerAgent with the Borrower’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.consent (not to be unreaso
Appears in 1 contract
Sources: Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available immediately prior to the time such Incremental Term Loan Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of (and which shall together with any then outstanding 2017 Replacement Term Loans or 2018 Replacement Term Loans, as applicable, form a single Class of) the 2017 Replacement Term Loans or the 2018 Replacement Term Loans, as applicable, or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the 2017 Replacement Term Loans and the 2018 Replacement Term Loans (“Other Incremental 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 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 CommitmentsLoans; provided, that that:
(i) any commitments to make additional 2017 Replacement Term Loans or 2018 Replacement Term Loans shall have the same terms as the 2017 Replacement Term Loans or the 2018 Replacement Term Loans, as applicable, and shall form part of the same Class of 2017 Replacement Term Loans or 2018 Replacement Term Loans, as applicable,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.19 shall rank pari passu or equally and ratably in right of security with the Initial Term Loans or, at the option of the Lux Borrower, shall rank junior in right of payment and security with the Initial Term 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 a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (iiv) below),
(iii) 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 and, except as to pricing, amortization and 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) the same terms as an existing Class of the 2017 Replacement Term Loans and the 2018 Replacement Term Loans Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity 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, Latest Maturity Date,
(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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and [reserved],
(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; 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 Incremental Term Loan and/or Other Incremental Revolving LoanLoans 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 Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrowers) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments, and
(viii) Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall not be secured by any asset of 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront Parent or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any its Subsidiaries other Class of Term Loans and/or Revolving Facility Loans, respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCollateral. Each of the parties 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 2.19 and any such collateral and other documentation shall be deemed amendment “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, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.19 unless (i) on no Default or Event of Default shall exist; provided that, in the date event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such effectivenesstranche of Incremental Term Loans agree, the conditions foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Parent and the Borrowers set forth in paragraphs this Agreement shall be true and correct in all material respects (bother than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to customary “specified representations” and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Business 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 breach of such representations; 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 Borrowers, (iiiii) the Administrative Agent shall have received customary documents and 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, opinions consistent with those delivered on the Closing Date and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect effectiveness of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable each Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 Incremental 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 2.14 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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, provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent Agent, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender delayed or an Approved Fundconditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of the Incremental Term Loans Loan Commitments initially incurred under this Agreement or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Incremental Term Loans Loan Commitments initially incurred under this Agreement (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Company may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Credit Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances, as the case may be, in their own sole discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Facility Credit Lender (which is not an existing Lender) shall be subject to the approval requirements 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 FundSection 9.07. Such notice shall set forth (iA) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (iiB) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments are requested to become effective (the “Increased Amount Date”), ) and (iiiC) in the case of (i) whether such Incremental Revolving Facility Commitments, Term Commitments are to be commitments to make term advances (“Other Term Advances”) and/or (ii) whether such Incremental Revolving Facility Credit Commitments are to be Revolving Loan Credit Commitments or commitments to make revolving loans advances with pricing and/or amortization terms different from the Revolving Loans Facility Advances (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term LoansCredit Advances”).
(b) The Borrowers 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 Facility Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lenderrequest. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances to be made thereunder, and shall be made (x) on terms and conditions agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the Agent; provided, that (i) the Other Incremental Term Loans Advances and Other Revolving Facility Advances shall rank pari passu or junior in right of payment and of security with the Term B LoansAdvances and Revolving Credit Advances, as applicable, (ii) the final maturity date of (A) any Other Incremental Term Loans Advances shall be no earlier than the Latest Maturity scheduled Termination Date and, except applicable to the Term B Facility and Euro Term B Facility (as to pricing, amortization and final maturity date, shall have set forth in clause (xc) of the same terms as an existing Class definition of Term Loans or “Termination Date”) and/or (yB) such other terms as any Other Revolving Facility Advances shall be reasonably satisfactory no earlier than the scheduled Termination Date applicable to the Administrative AgentRevolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Incremental Term Loans Advances 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 maturityB Advances or Euro Term B Advances, (iv) the Other Incremental Revolving Loans Facility Advances shall rank pari passu in right of payment and of security with require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Facility LoansCredit Facilities (under clause (a)(i) of the definition of “Termination Date”), (v) the final maturity date of any Other no Default shall have occurred and be continuing or would result from such Incremental Term Advances and/or Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Credit Advances and (vi) in 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; provided, further event 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Other Term Loans and/or Advances or Other Revolving Facility LoansAdvances is more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, respectivelyas applicable, by then the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, shall be increased to the extent necessary so that the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances is no more than 1/2 of 1% 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable; provided further, that in determining the Applicable Margin applicable to the Term Advances, Revolving Credit Advances, Other Term Advances and Other Revolving Credit Advances, (it being understood that any such increase may take the form of x) original issue discount (“OID”), ) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by such Borrower to the Lenders in the primary syndication thereof shall be included (with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), (y) customary arrangement or if it does so exceed commitment fees payable to the arrangers (or their affiliates) of such Applicable Margin, such Applicable Margin loans shall be increased so that excluded and (z) if the interest rate margin in respect Eurocurrency Rate “floor” applicable to the Other Term Advances or Other Revolving Facility Advances is higher than the Eurocurrency Rate “floor” applicable to the Term B Advances or Euro Term B Advances or Revolving Credit Advances, as applicable, then the amount of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which difference shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than be an increase in the Applicable Margin for each Class the Other Term Advances or Other Revolving Facility Advances for purposes of determining compliance with this clause (vi) (it being agreed, however, that the Company may elect to satisfy, at least in part, the requirements of this clause (vi) by increasing the Eurocurrency Rate “floor” applicable to the relevant existing Term Loans B Advances or Euro Term B Advances or Revolving Facility Loans, respectivelyCredit Advances to a rate that is no greater than the Eurocurrency Rate “floor” applicable to the applicable Other Term Advances and Other Revolving Credit Advances). The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments evidenced thereby as provided for in Section 9.08(e)thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Company’s consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties heretoPersons then party to this Agreement.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.04 unless (i) on the date of such effectiveness, the conditions representations and warranties set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied true and correct and the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower, (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, and consistent with those delivered on the Closing Date under Section 3.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans Advances and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Advances are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans Advances and Revolving Facility Loans Credit Advances, and (iii) the Borrowers shall would be in Pro Forma Compliance after 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 Loan Commitment and/or Incremental Revolving Facility Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the Loans 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 Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans Advances and/or Incremental Revolving Facility Advances (other than Other Incremental Term LoansAdvances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans Advances or Revolving Facility Advances 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers may, by written notice Subject to the Administrative Agent from time terms and conditions set forth herein, so long as no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to time, request such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicablethe Borrower shall have the right from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in an amount not to exceed the Incremental Amount from form of (a) one or more Incremental Term Lenders and/or increases to the Aggregate Revolving Committed Amount (“Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments” and the loans advanced thereunder, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and ) or (ivb) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more term loan commitments or one or more increases in any then-existing Classes of Term Loans term loan commitments (“Other Incremental Term Commitments” and the loans advanced thereunder, “Incremental Term Loans”; any Incremental Term Commitments, together with any Incremental Revolving Commitments, the “Incremental Commitments” and any Incremental Term Loans, together with any Incremental Revolving Loans, the “Incremental Loans”), by an aggregate amount of up to $500,000,000.
(b) The Borrowers following terms and each conditions shall apply to all Incremental Commitments and Incremental Loans: (a) the Incremental Loans shall constitute Credit Party Obligations, (b) (i) any Incremental Revolving Commitments shall be on the same terms (other than with respect to any upfront fees or arrangement fees) as the existing Revolving Commitments and (ii) any Incremental Term Lender and/or Loans shall have an amortization schedule, mandatory prepayment requirements (which mandatory prepayments shall be permitted to be applied, first, to Incremental Term Loans, and second, to any Revolving Facility Lender shall execute Loans), interest rates, rate floors, upfront fees, funding discounts, original issue discounts and deliver to prepayment premiums as determined by Hyatt, 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 Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of institutions providing the applicable Incremental Term Loans and/or Commitments, (c) any such Incremental Revolving Facility Commitments; provided, that (i) the Other Commitments and Incremental Term Loans shall rank pari passu or junior in right be entitled to the same voting rights as the existing Commitments and Loans and shall be entitled to receive proceeds of payment and of security with prepayments on the Term B same basis as comparable Loans, (iid) any such Incremental Commitment shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (e) such Incremental Commitments shall be in a minimum principal Dollar Amount (determined as of the most recent Revaluation Date) of $50,000,000 and integral multiples of $5,000,000 in excess thereof, (f) 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, upon the effectiveness proceeds of any Incremental Assumption AgreementLoan will be used in accordance with Section 3.13, this Agreement (g) the Borrower shall be amended to execute such promissory notes as are necessary and requested by the extent (but only to the extent) necessary Lenders to reflect the existence Incremental Commitments and terms Incremental Loans and (h) the representations and warranties made by the Borrower herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects on and as of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby date of such Extension of Credit as provided if made on and as of such date (except for those which expressly relate to an earlier date in Section 9.08(ewhich case such representations and warranties shall be true and correct as of such earlier date). 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.
(c) Notwithstanding The Borrower may invite existing Lenders or other banks, financial institutions and investment funds that are not Lenders and that are reasonably acceptable to the foregoingAdministrative Agent and that would satisfy the same criteria that would be required for such bank, no financial institution or investment fund to be an “Eligible Assignee” to join this Credit Agreement as Lenders to provide any Incremental Term Loan Commitment or Commitments and Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless Loans (any lender in respect of the Incremental Commitments and Incremental Loans, an “Incremental Lender”), provided (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 no existing Lender shall have received a certificate any obligation to that effect dated such date provide all or any portion of any Incremental Commitments or Incremental Loans and executed by a Responsible Officer of the Borrowers, (ii) the Administrative Agent such other banks, financial institutions and investment funds that are not existing Lenders shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, enter into such joinder agreements 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) give effect thereto as the Administrative Agent and the Borrower may reasonably require request and shall thereafter be deemed to assure that be Lenders. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Sections 10.6(c) or 10.6(e)) of the outstanding Loans (excluding Competitive Loans) and Participation Interests to the Incremental Term Loans and/or Revolving Facility Loans in respect of Lenders providing any Incremental Revolving Facility Commitments are secured by the Collateral ratably with (orCommitment so that, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or assignments, each Lender (including the Lenders providing the Incremental Revolving Facility Commitments Commitments) will hold Loans and Participation Interests equal to its Commitment Percentage of all outstanding Loans and LOC Obligations (and accordingly the Loans Borrower shall pay any additional amounts required pursuant to be made thereunder and the application of the proceeds therefrom as if made and applied on such dateSection 2.17).
(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)Hyatt, when originally made, are included in each Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 Incremental Lenders may, without the consent of any other Lender, enter into an amendment to any Credit Document (such Lenders, the an “Accepting LendersIncremental Amendment”) andto effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the case reasonable opinion 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to effect the extent provisions of this Section 2.5. The Administrative Agent is authorized to reasonably requested by enter into, on behalf of the Administrative AgentLenders, any Incremental Amendment. The provisions of this Section 2.5(d) shall have received legal opinionssupersede any other provisions of this Agreement and the Credit Documents, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under including Section 4.022.12 and Section 10.1.
Appears in 1 contract
Sources: Credit Agreement (Hyatt Hotels Corp)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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; providedprovided that, that (i) the Other any Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than 91 days after the Latest Revolving Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing Class of Term 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) 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[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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Term Loan and/or Loans and Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrower. 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 in Section 9.08(e10.08(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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheldwithheld or delayed) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower, (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 Restatement Effective Date and such additional customary documents and filings (including amendments to the Vessel Mortgages and other Security Documents and title endorsement bringdownsDocuments) 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 Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datedate (provided that, to the extent such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, at the Borrower's election, the date of determination of Pro Forma Compliance shall be deemed to be the date the definitive agreements for such Permitted Business Acquisition or such other acquisition that is permitted by this Agreement are entered into).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each outstanding Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which 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 acceptance has been madeLoans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the later of (x) the Term Facility Maturity Date in effect on the date of incurrence for the Class of Term Loans to which such offer relate and (y) 91 days after the Revolving Facility Maturity Date, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 Borrower’s consent (not to be unreasonably withheld or delayed) and only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other 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 Credit Commitments). Notwithstanding Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the foregoing, no Permitted Amendment associated Pro Rata Extension Offer; provided that the Borrower shall become effective unless cooperate with the Administrative AgentAgent 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 extent contrary in Section 2.18(c) (which provisions shall not be applicable to reasonably requested clauses (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative AgentAgent establish one or more tranches of term loans (including one or more “term loan B” tranches) under this Agreement (“Refinancing Term Loans”), shall have received legal opinionsthe Net Proceeds of which are used to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), board resolutions and/or an officer’s certificate consistent with those delivered so long as (i) the aggregate amount of such Refinancing Term Loans does not exceed the aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof plus amounts used to pay fees and expenses, (ii) if the Revolving Facility Credit Exposure outstanding on the Restatement Refinancing Effective Date under Section 4.02.would exceed the aggregate amount of Revolving Facility Commitments outstanding in each case after giving effect to the termination of such Revolving Facility Commitments, the Borrower shall take one or more actions such that such Revolving Facility Credit Exposure does not exceed such aggregate amount of Revolving Facility Commitments in effect on the Refinancing Effective Da
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 10.0 million and a minimum amount of $25.0 50.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make Term B-6 Loans or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B-6 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Extended Maturity Revolving Loan Facility Commitments or commitments to make revolving loans with pricing interest rates and/or amortization fees and/or maturity and/or other terms different from the Revolving Loans under the Extended Maturity Revolving Facility Commitments (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 pricinginterest rates, amortization and final maturity datedate (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 (x) the same terms as an existing Class of the Term Loans B-6 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 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 maturityB-6 Loans, (iv) the Other Incremental Revolving Loans shall rank pari passu in right of payment except as to interest rates, fees and of security with the Revolving Facility Loansfinal maturity date (which shall, subject to clause (v) of this proviso, be determined by the final maturity date of any Other Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans under the Extended Maturity Revolving Facility Commitments or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viv) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed Maturity Date applicable to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Term Loans and/or Extended Maturity Revolving Facility Loans, respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments. 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 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowersbe continuing or would result therefrom, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that the Borrower shall not be required to be in such Pro Forma Compliance with respect to Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments not to exceed $500.0 million in the aggregate since the Closing Date or with respect to Incremental Term Loan Commitments in respect of Refinancing Term Loans or Extended Term Loans or Incremental Revolving Facility Commitments in respect of Extended Revolving Facility Commitments or Replacement Revolving Facility Commitments and (iii) after giving effect to the incurrence of 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 Incremental Term Loans)) in the form of additional Term B-6 Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B-6 Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental with respect to any Revolving Loans)Facility, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B-6 Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall (x) be a Revolving Facility Commitment with the same terms as the Extended Maturity Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the First Lien Net Proceeds of which are used to repay Term Loans pursuant to Section 2.11(h). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent; provided that: (i) before and Commitments after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the Accepting Lenders 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 Affected Class Term B-6 Loans; and (including iii) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and final maturity which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) shall be substantially similar to, or less favorable to the Lenders providing such Refinancing Term Loans than, those applicable to the Term B-6 Loans except to the extent such covenants and other terms apply solely to any amendments necessary to treat period after the Loans and Commitments latest final maturity of the Accepting Lenders Term Loans in effect on the date of the Affected Class as Other incurrence of such Refinancing Term Loans. In addition, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative AgentBorrower may establish Refinancing Term Loans to refinance and/or replace all or any portion of a Revolving Facility Commitment (regardless of whether Revolving Facility Loans are outstanding under such Revolving Facility Commitments at the time of incurrence of such Refinancing Term Loans), to so long as (i) the extent to reasonably requested by aggregate amount of such Refinancing Term Loans does not exceed the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered aggregate amount of Revolving Facility Commitments terminated at the time of incurrence thereof and (ii) if the Revolving Facility Credit Exposure outstanding on the Restatement Refinancing Effective Date under Section 4.02.would exceed the aggregate amount of Revolving Facility Commitments outstanding i
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approval approvals shall not be unreasonably withheld) withheld or delayed), in each case, unless such Incremental Revolving Facility Lender is a Lender, an Affiliate Revolving Facility Lender prior to the establishment of a Lender or an Approved Fundsuch Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum aggregate amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the 2023 Refinancing Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the(x) at all times on and prior to the First Amendment Effective Date (before giving effect thereto), Term B Loans and (y) at all times on and after the First Amendment Effective Date (after giving effect thereto), the 2023 Refinancing Term B Loans (such term loans at any given time, “Other Incremental Term Loans”).. 124
(b) The Borrowers 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 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 that:
(i) any commitments to make additional 2023 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the 2023 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (iivii) below),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, applicable to the 2023 Refinancing Term B Loans and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the 2023 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of 2023 Refinancing Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement), 125
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the 2023 Refinancing Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosingFirst Amendment Effective Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such 2023 Refinancing Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, ClosingFirst Amendment Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2023 Refinancing Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2023 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2023 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term B Facility Maturity Date applicable to the 2023 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2023 Refinancing Term B Loans, on a junior basis) than the 2023 Refinancing Term B Loans in any mandatory prepayment hereunder; and 126
(A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall have occurred or 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 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 Mortgages Collateral Documents, as applicable, and other Security modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents and title endorsement bringdownsor hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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.Loans. 127
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as Facility are offered to which such Lender’s acceptance has been made.
(f) The Borrowers be extended for the same amount of time and each Accepting Lender shall execute that the interest rate changes and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only 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 and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loansmade thereunder, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.“Exte
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the same Borrower and its Subsidiaries than, the terms and conditions, taken as an a whole, applicable to the Term B Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing Class at the time of incurrence of such additional Term Loans Facility), 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, or be unsecured (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, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the latest Term 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 Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, (iv) the Term B Loans or Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Term 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, participation in mandatory prepayments and commitment reductions and ranking as to security (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) terms substantially similar to, or not materially less favorable to the same Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (except for covenants or other provisions applicable only to periods after the latest Revolving Facility Loans Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments) or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Maturity Date with respect to the Initial Revolving Loans; provided, further that the interest rate margin ,
(which shall be deemed viii) with respect to include all upfront or similar fees or original issue discount payable to all Lenders providing such any Other Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the twelve-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 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’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower and the Loans Master Lease Tenants) or (i) (with respect to be made thereunder the Borrower and the application of the proceeds therefrom as if made Master Lease Tenants) shall have occurred and applied on such datebe 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender conditions, taken as a whole, applicable to the effectiveness existing Class of each Loan Modification Agreement. Each Term Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of the parties hereto hereby agrees thatincurrence of such Extended Term Loan), upon the effectiveness of any Loan Modification Agreement, this Agreement or (y) such other terms as shall be deemed amended reasonably satisfactory to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates (without giving effect to any amortization or prepayments on such Class of Term Loans), (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) terms substantially similar to, or not materially less favorable to the extent Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of Revolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Extended Revolving Facility Commitments) or (y) have such other terms as shall be reasonably requested by satisfactory to the Administrative Agent, shall have received legal opinions, board resolutions and (v) any Extended Term Loans and/or an officer’s certificate consistent with those delivered Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments hereunder. Upon the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility 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 and (ii) each Incremental Revolving Facility Commitment shall be on the same terms as the existing Revolving Facility Commitments and in all respects shall become a part of a Lender or an Approved Fundthe Revolving Facility hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility to comply with this clause (ii). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 5 million and a minimum amount of $25.0 25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, and (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect increase the existence and terms Revolving Facility by the amount of the Incremental Term Revolving Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e)thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(ca) 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 satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersCompany, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and all other Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(db) 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 Revolving Loans in respect of Incremental Term Loans (other than Other Incremental Term Loans)Revolving Facility Commitments, when originally made, are included in each Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Maturity Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed that the Incremental Amount from be provided by 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, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Loan Commitments are to be Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Revolving Facility Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, 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, (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 pricing and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or Loans, as applicable, and (y) intercreditor arrangements and such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viii) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyMaturity Date. 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 Revolving Loan Commitments and/or 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs both before and after such effectiveness, (bx) there is no Default or Event of Default and (cy) of Section 4.01 the Borrower shall be satisfied and 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 the BorrowersBorrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iiiii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and 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 an existing Class 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 be subject to clause (viii) below),
(iii) 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,
(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 or (y) such other terms 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, (ivvi) the Other Incremental Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of payment and of security with the Initial Revolving Facility LoansLoans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans and, for the avoidance of doubt, shall not be subject to clause (vix) below),
(vii) 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory with respect to the Administrative Agent, and Initial Revolving Loans,
(viviii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so 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 interest rate margin All-in Yield in respect of any such Other Revolving Loan may exceed the All-in Yield in respect of such Other Incremental Term Loan or Other Incremental Initial Revolving Loan, as Loans on the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is Closing Date by no more than 1/2 of 1% higher than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Revolving Yield Differential”) then the Applicable Margin for each Class of Term applicable to such Initial Revolving Loans or shall be increased such that after giving effect to such increase, the Revolving Facility Loans, respectivelyYield 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 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) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, made from time to time by a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (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) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 Borrowers’ consent (not to be unreasonably withheld) and only 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 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 upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding Facility Commitments and all obligations in respect thereof shall be Loan Obligations of the foregoing, no Permitted Amendment shall become effective unless relevant Loan Parties under this Agreement and the Administrative Agent, to the extent to reasonably requested other Loan Documents that are secured by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent Collateral on a pari passu basis with those delivered on all other Obligations of the Restatement Effective Date under Section 4.02.relevant Loan Par
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Sources: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)
Incremental Commitments. (a) i. The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval 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 FundFund of a Revolving Facility Lender. Such notice shall set forth (i) 1. the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Administrative Agent), (ii) 2. the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, (iii) 3. in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, borrowers, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental Revolving Loans”), ) and (iv) 4. in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, borrowers, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) ii. The Borrowers 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 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) that: any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively, the Other Incremental Term Loans shall rank pari passu or or, at the option of the Borrowers, junior in right of payment and security with the Term B Loans or shall be unsecured (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 (iivii) below), other than with respect to an aggregate principal amount at any time outstanding not to exceed the Maturity Limitation Excluded Amount, the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (x) substantially the same terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) other than with respect to an aggregate principal amount at any time outstanding not to exceed the weighted average life Maturity Limitation Excluded Amount, the Weighted Average Life to maturity Maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturityB Loans, (iv) the Other Incremental Revolving Loans shall rank pari passu in right of payment and security with the Initial Revolving Loans or, at the option of the Borrowers, junior in right of security with the Initial Revolving Facility Loans or shall be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, (v) such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement), the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life with respect 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; 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 Incremental Term Loan and/or incurred prior to the twelve month anniversary of the Fourth Restatement Effective Date that ranks pari passu in right of security with the Term B Loans (other than Other Incremental Revolving Loan) Term Loans which constitute MFN Excluded Loans), the All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Fourth Restatement Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Fourth Restatement Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; with respect to the incurrence of any Incremental Revolving Loans or any Other Revolving Loans, the Borrowers shall be in compliance with the Financial Covenant on a Pro Forma Basis;
a. the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and b. the Other Term Loans may participate on a pro rata basis 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; there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as Facility Commitments that is not a Loan Party; and the case may be (which Other Revolving Loans and Other Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than denominated in U.S. Dollars and borrowed by the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Borrowers; Each of the parties party hereto hereby agrees that, 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 amendment “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) iii. Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) 1. on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clauses (b) and (c) of Section 4.01 shall be satisfied (subject to Section 1.07 for a Limited Condition Acquisition) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (ii) Borrowers and 2. 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 Fourth Restatement Effective Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Commitments, if secured, are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect with respect to such Incremental any Other Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder incurred by a Foreign Subsidiary, such other collateral and guarantee documentation with respect to any Foreign Subsidiary or any asset of Foreign Subsidiaries as the application of Administrative Agent may reasonably request to implement the proceeds therefrom as if made collateral and applied on such dateguarantee arrangements contemplated by this Section 2.21 with respect thereto).
(d) iv. 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) 1. all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) 2. all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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.
v. Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) The Borrowers maythrough (i) of this Section 2.21), by written notice pursuant to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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, 1. 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 Lender’s Loans extension are the same and 2. in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Affected Class Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan or Extended Revolving Facility Commitment, as applicable, shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to which the Administrative Agent (or such Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) vi. The Borrowers and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereofapplicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that 1. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification AgreementTerm Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, 2. Each 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, 3. 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon 4. except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and 5. 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 Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.exist
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, denominated at the option of the Borrowers in Dollars and/or Euro and, in the case of any Incremental Revolving Facility Commitments, any Alternate Currency in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established 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, provided that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fundperson pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be (x) in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 and (y) minimum increments of €5,000,000 and a minimum amount of €25,000,000 if such Incremental Loans are denominated in Euro or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iva) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with pricing and/or amortization terms identical to an existing Class of (and which together with any then outstanding Initial Term Loans form a single Class of) Initial Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial Term Loans (“Other Incremental Term Loans”) and (b) in the cash of Incremental Revolving Facility Commitment, whether such Incremental Revolving Facility Commitments are to be (x) Initial Revolving Facility Commitments or (y) commitments to make revolving loans with pricing and final maturity different from the Revolving Facility Loans (“Other Incremental Revolving 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 Assumption Agreement and 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, provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clauses (ii), (iii) and (v) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Incremental Term Loans shall rank pari passu have (A) substantially the same terms as the Initial Term Loans or junior in right of payment and of security with (B) such other terms as shall be reasonably satisfactory to the Term B LoansAdministrative Agent, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the then Latest Maturity Date and, except as to pricing, amortization and no Incremental Revolving Facility shall have a final maturity date, any scheduled amortization or any mandatory commitment reduction that occurs prior to the Latest Maturity Date of the Initial Revolving Facility, (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 Term Loans, (iv) except as to pricing and final maturity date (which shall, subject to clause (ii) and (vi) of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Incremental Revolving Loans shall have (xA) substantially the same terms as an existing Class of Term Loans the Initial Revolving Facility or (yB) such other terms 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) in 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; provided, further event 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 All-in-Yield for such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Commitments is greater than the All-in-Yield for the existing Initial Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term B Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed by more than 50 basis points, then the Applicable Margin for any other Class of the existing Term Loans and/or Revolving Facility Loans, respectively, by shall be increased to the extent necessary so that the All-in-Yield for such Incremental Term Loan Commitments is no more than 1/2 50 basis points higher than the All-in-Yield for the existing Initial Term B Loans, (vi) in the case of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated Incremental Revolving Facility Commitments in effect prior to the interest rates one year anniversary of the Closing Date, in a manner reasonably determined the event that the All-in-Yield (at any analogous point in the Pricing Grid) for such Incremental Revolving Facility Commitment is greater than the All-in-Yield for the existing Revolving Facility by more than 50 basis points, then the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin for the existing Revolving Facility shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental All-in-Yield for the existing Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), Facility is no more than 1/2 of 1% higher 50 basis points less than the Applicable Margin All-in-Yield for each Class of Term Loans or the Incremental Revolving Facility LoansCommitments, respectively(vii) at the time of and immediately after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, no Event of Default or Default shall have occurred and be continuing and (viii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects as of such date (except to the extent such representations and warranties are qualified by “materiality” or “Material Adverse Effect,” in which case such representations and warranties shall be true and correct in all respects), as applicable, with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that in the case of a Limited Condition Acquisition, the only representations and warranties that will be required to be true and correct in all material respects will be the Specified Representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Dutch Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.22 unless (i) subject to the limitations in Section 1.07(a) in the case of any Borrowing in connection with a Limited Condition Acquisition, on the date of such effectiveness, the conditions set forth in paragraphs (b) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (cii) of Section 4.01 shall be satisfied and except as otherwise specified in the applicable amendment, the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer (with sufficient copies for each of the Borrowers, (iiLenders providing such Other Incremental Term Loans or Incremental Revolving Loan Commitments) the Administrative Agent shall have received legal opinions with respect to customary legal opinionsmatters, board resolutions resolutions, Notes and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required reasonably requested by the Administrative Agent, Agent and 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 require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateunder subsection 4.02.
(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)) in the form of additional Initial Term Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Initial Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental that are Revolving Loans)Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Initial Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). Permitted Amendments shall become effective only with respect to the Incremental Term Loans and Commitments Incremental Revolving Loans shall rank pari passu in right of payment and of security with 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 Term Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Revolving Facility Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02same Guarantees.
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or and amortization terms identical to an the Term A Loans (which may be part of the applicable existing Class of Term Loans Class) or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term A Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of 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 amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing Class the Term A 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 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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Revolving Loans and the Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrowers. 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 in Section 9.08(e10.08(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 amendment “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, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless 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 BorrowersCompany, (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 and title endorsement bringdownsDocuments) 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) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 outstanding 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) no Issuing Bank shall be obligated to issue Letters of Credit under such Extended Revolving Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrowers shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrowers may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the Net Proceeds of which are used to repay Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrowers propose that the Refinancing Term Loans and/or Other Revolving Credit Commitments). Notwithstanding shall be made, which shall be a date not less than five Business Days after the foregoing, no Permitted Amendment shall become effective unless date on which such notice is delivered to the Administrative Agent, ; provided that: (i) before and after giving effect to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered borrowing of such Refinancing Term Loans on the Restatement Effective Date under Section 4.02.
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 10.0 million and a minimum amount of $25.0 50.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans ▇-▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇-▇ Loan Commitments, Term B-3 Loan Commitments or commitments to make term loans with pricing and interests rates and/or amortization and/or maturity and/or other terms different from one the Term B-1 Loans, Term B-2 Loans or more existing Classes of Term B-3 Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 pricinginterest rates, amortization and final maturity datedate (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 (x) the same terms as an existing Class of the Term B-1 Loans, Term B-2 Loans or Term B-3 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 Term B Facility Maturity Date, (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 B-1 Loans, Term B-2 Loans with the longest weighted average life to maturity, or Term B-3 Loans and (iv) the Other any 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 Loan Commitment shall be no earlier than the a Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) Loan Commitment with the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowersbe continuing or would result therefrom, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 datedate 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 Incremental Term Loans)) in the form of additional Term B-1 Loans, Term B-2 Loans or Term B-3 Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B-1 Loans, Term B-2 Loans or Term B-3 Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approval approvals shall not be unreasonably withheld) withheld or delayed), in each case, unless such Incremental Revolving Facility Lender is a Lender, an Affiliate Revolving Facility Lender prior to the establishment of a Lender or an Approved Fundsuch Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum aggregate amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosing Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term B Facility Maturity Date (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Term B Loans, on a junior basis) than the Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to finance any Permitted Business Acquisition or any other similar permitted Investment, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall have occurred or 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 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 Mortgages Collateral Documents, as applicable, and other Security modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents and title endorsement bringdownsor hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Extended Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.L
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, provided that each Incremental Term Lender and/or Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless no consent would be required for an assignment to such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fundperson pursuant to Section 9.04(b)(i)(B). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 10 million and a minimum amount of $25.0 25 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iva) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans B Loan Commitments or commitments to make term loans with pricing and interest rates and/or amortization and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and/or (b) whether such Incremental Term Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing different from the Revolving Facility Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity datedate (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 (x) the same terms as an existing Class of 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 Other Term Loans shall be no earlier than the then Latest Maturity Date, (iii) the weighted average life Weighted Average Life to maturity Maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturityB Loans, (iv) the Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Loansexcept as to pricing (which shall, subject to clause (v) of this proviso, be determined by the final maturity date of any Other Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viv) in the weighted average life to maturity of event that the Applicable Margin (at any Other analogous point in the Pricing Grid) for any Incremental Term Loan or Incremental Revolving Loans shall be no shorter Loan is greater than the remaining weighted average life to maturity of any other Class of Applicable Margin for the existing Term Loans or existing Revolving Loans, as applicable, by more than 25 basis points, then the Applicable Margin for the existing Term Loans or existing Revolving Facility Loans, as applicable, shall be increased to the extent necessary so that the Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental Term Loans or existing Revolving Loans, as applicable, is 25 basis points higher than the Applicable Margin for the existing Term Loans or existing Revolving Facility Loans, as applicable; provided, further further, that in determining the interest rate margin Applicable Margin applicable to the existing Term Loans or existing Revolving Facility Loans, as applicable, and the Incremental Term Loans or Incremental Revolving Loans, as applicable, (which shall be deemed to include all x) original issue discount or upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loanscollectively, 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”) payable by the Borrower to the Lenders of the existing Term Loans or the Incremental Term Loans (or the existing Revolving Facility Loans or the Incremental Revolving Loans, as applicable), in the primary syndication thereof shall be included (with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), (y) customary arrangement or if it does so exceed such Applicable Margin, such Applicable Margin commitment fees payable to arrangers (or their respective affiliates) shall be increased so that excluded; and (z) if the interest rate margin in respect of such Other ABR or Eurocurrency Rate “floor” for the Incremental Term Loan Loans or Other Incremental Revolving LoanLoans, as applicable, is greater than the case may be ABR or Eurocurrency Rate “floor,” respectively, for the existing Term Loans or existing Revolving Facility Loans, as applicable, the difference between such floor for the Incremental Term Loans and the existing Term Loans (which or the Incremental Revolving Loans and the existing Revolving Facility Loans, as applicable) shall be deemed equated to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than an increase in the Applicable Margin for purposes of this clause (v). The Administrative Agent shall promptly notify each Class Lender as to the effectiveness of Term Loans or Revolving Facility Loans, respectivelyeach Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e9.08(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.22 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowers, 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 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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(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)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental that are Revolving Loans)Facility Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). Permitted Amendments shall become effective only with respect to the Incremental Term Loans and Commitments Incremental Revolving Loans shall rank pari passu in right of payment and of security with 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 Term Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been madeRevolving Facility Loans.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (TII Smart Solutions, Sociedad Anonima)
Incremental Commitments. Upon the satisfaction of the following conditions (asuch date of satisfaction, the “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be increased by an amount equal to the Incremental Amount:
(i) The no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to the Incremental Facility;
(ii) the Borrowers may, by written notice shall have paid to the Administrative Agent from time to time, request for the account of each Incremental Term Loan Commitments and/or Revolving Facility Lender (other than Defaulting Lenders) having Incremental Revolving Facility Commitments, as applicable, ratably in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or accordance with each such Lender’s Incremental Revolving Facility Lenders Percentage, an accordion fee (which may include any existing Lenderthe “Incremental Facility Exercise Fee”) 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 shall be subject equal to the approval product 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 Term Loan Commitments and/or total Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), multiplied by (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), 0.125% per annum;
(iii) the termination of the AB Receivables Financing and the payment in full or provision for payment in full of all obligations owing to the purchasers under the AB Receivables Financing, in each case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are in a manner reasonably acceptable to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and Administrative Agent;
(iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental 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 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 maintain a senior perfected security interest in substantially all of the applicable Incremental Term Loans and/or Incremental Revolving Facility CommitmentsAB Receivables owned by Wise; provided, that (i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 written notice signed by a Responsible Officer of each Borrower, notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Facility and certifying as to the matters set forth in this Section 2.15. On the Incremental Facility Effective Date, (iii) each relevant Incremental Revolving Facility Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall have received customary legal opinionsdetermine, board resolutions for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other customary closing certificates and documentation as required by Lenders, each Lender’s portion of 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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or outstanding Revolving Facility Loans in respect of Incremental all the Lenders to equal its Pro Rata Share of such outstanding Revolving Facility Commitments are secured by the Collateral ratably with (orLoans, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iiiii) the Borrowers shall be in Pro Forma Compliance after giving effect deemed to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments have repaid 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 reborrowed all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on as of the Incremental Facility Effective Date (with such reborrowing to consist of the Types of Revolving Facility Loans, with related Interest Periods if applicable, specified in a pro rata basisnotice delivered by the applicable Borrower, in accordance with the requirements of Section 2.03). The Borrowers agree that deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Rate Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.16 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Notwithstanding any provision herein or in any other Loan Document to the contrary, no Revolving Facility Loans, other Credit Events or any other financial accommodations advanced in excess of the total Revolving Facility Commitments as in effect immediately prior to the Incremental Facility Effective Date shall apply to be secured by any conversion of Eurocurrency Loans to ABR Loans reasonably Real Property unless and until the flood diligence required by the Administrative Agent Sections 6.02 and 10.01 has been completed in a manner satisfactory to effect the foregoing.
(e) The Borrowers mayeach Lender, as confirmed by written notice from each such Lender to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) to all and 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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 Borrowers after the date of such notice). 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 madeIncremental Facility Effective Date.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) xxiv. The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with Borrowers, currencies, pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with Borrowers, currencies, pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(ba) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the an existing Class of Term B LoansLoans (and, if such Other Incremental Term Loans are incurred by a Foreign Subsidiary, such Other Incremental Term Loans may also be guaranteed by one or more Foreign Subsidiaries and secured by assets owned by one or more Foreign Subsidiaries, in each case as agreed to by the Borrowers, the Administrative Agent and the relevant Incremental Term Lenders), (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 and final maturity date, shall have (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 LoansLoans (and, if such Other Incremental Revolving Loans are incurred by a Foreign Subsidiary, such Other Incremental Revolving Loans may also be guaranteed by one or more Foreign Subsidiaries and secured by assets owned by one or more Foreign Subsidiaries, in each case as agreed to by the Borrowers, the Administrative Agent and the relevant Incremental Revolving Facility Lenders), (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 datedate 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, and (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 LoansLoans and (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall either be (x) denominated in U.S. dollars or Euros and borrowed by the Borrowers or (y) denominated in Euros and borrowed by a Foreign Subsidiary (such borrower, a “Euro Borrower” and such facility, a “Euro Incremental Facility”), provided that in the case of this clause (y), (1) the Euro Borrower shall be identified in the applicable Incremental Assumption Agreement and shall be reasonably satisfactory to the Administrative Agent (it being agreed that Rexnord Flattop Holdings B.V. shall be satisfactory to the Adminstrative Agent), and (2) the Euro Borrower shall become party hereto as a Euro Borrower pursuant to a joinder, and subject to delivery of customary opinions and other documents, reasonably satisfactory to the Administrative Agent; provided, further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 ½ of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), or if it does so exceed such Applicable MarginAll-in Yield, such the Applicable Margin shall be increased so that the interest rate margin All-in Yield in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 ½ of 1% higher than the Applicable Margin All-in Yield for each Class of Term Loans or Revolving Facility Loans, respectively. 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 in Section 9.08(e) and (ii) in connection with any Incremental Assumption Agreement implementing a Euro Incremental Facility, such Incremental Assumption Agreement shall contain “collection allocation mechanism” provisions substantially the same as those set forth on Schedule 2.21(b) hereto (which provisions the Lenders hereby consent to and approve). 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 amendment “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.
(cb) 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 Borrowers, (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 Second Restatement Effective 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 require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans (and, with respect to any Other Incremental Term Loans to be incurred by a Forein Subsidiary, such other collateral and guarantee documentation with respect to any Foreign Subsidiary or any asset of Foreign Subsidiaries as the Administrative Agent may reasonably require to implement the collateral and guarantee arrangements contemplated by this Section 2.21 with respect thereto) and (iii) the Borrowers 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.
(dc) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental 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.
(d) Notwithstanding anything to the contrary in Section 2.18(c) (which provisions shall not be applicable to clauses (e) The Borrowers maythrough (i) of this Section 2.21), by written notice pursuant to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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”)).
(fe) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments 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 Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be 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 and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 Borrowers’ consent (not to be unreasonably withheld) and only 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 Assignment Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the Accepting Lenders maturity date for any Class of Revolving Credit Commitment.
(f) Upon the Affected Class effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(g) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitmentswithout limitation this Section 2.21). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.,
Appears in 1 contract
Sources: Credit Agreement (RBS Global Inc)
Incremental Commitments. (a) The Borrowers After the Closing Date has occurred, BGI may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (in each case, except as set forth in Section 1.07) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 Facility Commitments, as the case may be, in their own sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5.0 million 5,000,000 and a minimum amount of the Dollar Equivalent of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing (and which shall together with any then outstanding Initial Term Loans form a single Class of of) Initial Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be in the sole discretion of such Lender.
(b) The Borrowers BGI 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.:
Appears in 1 contract
Sources: Amendment No. 2 (Barnes Group Inc)
Incremental Commitments. (a) The Borrowers Borrower or any Co-Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower or such Co-Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the 2024 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the 2024 Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term Loans or B-1 Loans, (y) commitments to make term loans with pricing and amortization terms identical to Term B-2 Loans or (z) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one the Term B-1 Loans or more existing Classes of Term B-2 Loans (“Other Incremental Term Loans”).
(b) The Borrowers Borrower, each applicable Co-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 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 that:
(i) any commitments to make additional Term B-1 Loans, Term B-2 Loans and/or 2024 Revolving Loans shall have the same terms as the Term B-1 Loans, Term B-2 Loans or 2024 Revolving Loans, respectively;
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and of security with the Term B 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 (iivii) below);
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of 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, ;
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B-1 Loans;
(ivv) the Other Incremental 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 payment and of security with the 2024 Revolving Facility 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);
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the 2024 Revolving Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as the 2024 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ;
(vivii) the weighted average life (A) with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B-1 Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental increase, the Term Loan Commitment and/or Incremental Revolving Facility Commitments and Yield Differential shall not exceed 0.50%; provided that, to the Loans to be made thereunder and the application extent any portion of the proceeds therefrom as if made and applied on Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such date.
(d) Each Other Term Loans, such floor shall only be included in the calculation of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental 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) The Borrowers may, by written notice Yield Differential to the Administrative Agent from time to extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 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; and Commitments (B) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-2 Loans, the All-in Yield shall be the same as that applicable to the Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Affected Class Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term B-2 Yield Differential”) then the Applicable Margin (or the “SOFR floor” as to which such Lender’s acceptance has been made.
(fprovided in the following proviso) The Borrowers and each Accepting Lender shall execute and deliver applicable to the Administrative Agent a Loan Modification Agreement and Term B-2 Loans shall be increased such other documentation as that after giving effect to such increase, the Administrative Agent Term B-2 Yield Differential shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees not exceed 0.50%; provided that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms any portion of the Permitted Amendment evidenced thereby and only with respect Term B-2 Yield Differential is attributable to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary a higher “SOFR floor” being applicable to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as such Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding such floor shall only be included in the foregoing, no Permitted Amendment shall become effective unless calculation of the Administrative Agent, Term B-2 Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to reasonably requested by such excess, the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on “SOFR floor” applicable to the Restatement Effective Date under Section 4.02.outstanding Term
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Initial Revolving Facility 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),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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;
(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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Facility Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, 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 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and conditions thereof. The commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall promptly notify each Lender as be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the effectiveness of each Loan Modification AgreementInitial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.nece
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank and the Swingline Lender (which approval approvals 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”)effective, and (iviii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with pricing and/or amortization terms identical to an existing (and which shall together with any then outstanding Initial2017 Term B Loans form a single Class of of) Initial2017 Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial2017 Term B Loans (“Other Incremental 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 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 that:
(i) any (x) commitments to make additional Initial2017 Term B Loans shall have the same terms as the Initial2017 Term B Loans, and shall form part of the same Class of Initial2017 Term B Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then (and theretofore) outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date),
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or equally and ratably in right of security with the Initial2017 Term B Loans or, at the option of the Lux Borrower, shall rank junior in right of payment and security with the Initial2017 Term B Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial2017 Term B Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (iiv) below),
(iii) 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 and, except as to pricing, amortization and 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) the same terms as an existing Class of the Initial2017 Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity 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, Latest Maturity Date,
(v) the final maturity date of with respect to any Other Incremental Revolving Loans Term Loan, the All-in Yield shall be no earlier than as agreed by the Revolving Facility Maturity Date andrespective Incremental Term Lenders and the Borrowers, except as to pricing, amortization and final maturity date, shall have (x) that the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity All-in Yield in respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the All-in Yield in respect of any Other the Initial2017 Term B Loans or the Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term B-1 Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin shall be increased so that (or the interest rate margin “LIBOR floor” as provided in respect of the following proviso) applicable to such Other Initial2017 Term B Loans or such Incremental Term Loan or Other Incremental Revolving LoanB-1 Loans, as the case may be (which be, shall be deemed increased such that after giving effect to include all upfront 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 Initial2017 Term B Loans or similar fees or original issue discount payable the Incremental Term B-1 Loans, as the case may be, shall be increased to all Lenders providing an amount not to exceed the “LIBOR floor” applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each Class of applicable to such Initial2017 Term B Loans or such Incremental Term B-1 Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial2017 Term B Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than the Borrowers) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility LoansCommitments, respectivelyand
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of the Parent or its Subsidiaries other than the Collateral. Each of the parties 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 amendment “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, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on no Default or Event of Default shall exist; provided that, in the date event that any tranche of Incremental Term Loans is used to finance a Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such effectivenesstranche of Incremental Term Loans agree, the conditions foregoing clause (i) shall be tested at the time of the execution of the acquisition agreement related to such Permitted Business Acquisition (provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Parent and the Borrowers set forth in paragraphs this 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 Permitted Business Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to customary “specified representations” and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Permitted Business 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 breach of such representations; (iii) on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to Section 5.04(a) or (b) and (cor, if prior thereto, pursuant to Section 4.02(h)) as if (x) in the case of Section 4.01 shall be satisfied and any Incremental Term Loans, such Incremental Term Loans had been outstanding on the Administrative Agent shall have received a certificate last day of such fiscal quarter of the Parent for testing compliance therewith or (y) in the case of any Incremental Revolving Facility Commitments, all Revolving Facility Loans available to that effect dated such date and executed by a Responsible Officer of the Borrowers, including any such Incremental Revolving Facility Commitment, had been outstanding on the last day of such fiscal quarter of the Parent for testing compliance therewith, the Parent shall be in compliance with the Financial Covenant (iiif then in effect) (at any time prior to the first test date pursuant to said Section 6.12, as if the initially applicable covenant levels were then in effect); and (iv) the Administrative Agent shall have received customary documents and 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, opinions consistent with those delivered on the Closing Date and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect effectiveness of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable each Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Incremental Commitments. (a) The Borrowers mayBorrower may on one or more occasions, by written notice to the Administrative Agent from time to timeAgent, request (i) Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Term Lenders and/or Lenders, (ii) Incremental Revolving Facility Lenders (which may include any existing Lender) Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to provide such Incremental Term Loans and/or become Incremental Revolving Facility CommitmentsLenders and (iii) Incremental Tranche A LC Commitments in an aggregate amount not to exceed the Incremental Commitment Amount from one or more financial institutions willing to become Incremental Tranche A LC Lenders, as the case may be, in their own discretion; provided, provided that each Incremental Revolving Facility Lender, if not already a Lender hereunder, shall be subject reasonably acceptable to the approval of (x) the Administrative Agent Agent, (which approval shall not be unreasonably withheldy) unless such in the case of Incremental Revolving Lender is a Lenders and Incremental Tranche A LC Lenders, each Issuing Bank and (z) in the case of Incremental Revolving Lenders, the Swingline Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (iA) the amount of the Incremental Term Loan Commitments and/or Commitments, Incremental Revolving Facility Commitments or Incremental Tranche A LC Commitments, as applicable, being requested (which shall be in minimum increments integral multiples of $5.0 million 1,000,000 and a minimum amount of not less than $25.0 million 25,000,000, or equal to the remaining Incremental Commitment Amount), (iiB) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the “Increased Amount Date”date of such notice (which time periods for notice may be modified or waived by the Administrative Agent in its discretion), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (ivC) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization on terms identical to an existing Class of the Term Loans outstanding on the date of making of such new term loans or commitments to make term loans with pricing economic terms (such as pricing, maturities and amortization terms schedules) that are different from one or more existing Classes of such outstanding Term Loans (but otherwise on the terms identical to such outstanding Term Loans) (“Other Incremental Term Loans”).
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an appropriate Incremental Credit 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 Term Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or to be made thereunder; provided that, without the prior written consent of the Term Lenders holding a majority of the principal amount of the Term Loans outstanding immediately prior to the effectiveness of such Incremental Revolving Facility Commitments; providedTerm Assumption Agreement, that (i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] Other Incremental Term Loans shall be no earlier than the Latest Term Maturity Date andDate, except as to pricing, amortization and final maturity date, shall have (xii) the same terms as an existing Class of Term Loans or (y) such other terms 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 such Term Loans with and (iii) if 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 initial yield on any Other Incremental Revolving Term Loans shall (as determined by the Administrative Agent to be no earlier than equal to the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have sum of (x) the same terms as Adjusted LIBOR margin on the Revolving Facility Other Term Loans or and (y) such other terms as shall be reasonably satisfactory to if the Administrative Agent, and (vi) Other Term Loans are initially made at a discount or 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for making such Loans (the amount of such discount or fee, expressed as that applicable to a percentage of the Other Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (referred to herein as “OID”), with the amount of such OID divided by four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being equated referred to herein as the “Yield Differential”) the Applicable Rate then in effect for Eurodollar Term Loans, then the Applicable Rate then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect effectiveness of such Other each Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCredit Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Credit Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary or advisable, in the judgment of the Administrative Agent, to reflect the existence and terms of the each Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments Commitment evidenced thereby as provided for and any increase in Section 9.08(e)the Applicable Rate required by paragraph (b) of this Section. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(cd) 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 (ba) and (cb) of Section 4.01 4.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Financial Officer of the Borrowers, 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 Assumption Agreement and, to the extent required reasonably requested by the Administrative Agent, Agent consistent with those delivered on the Closing Date pursuant to Section 4.01.
(e) Upon effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans a Lender in respect of Loans and Commitments of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Loans and Commitments of the applicable Class) hereunder. Without limiting the generality of the foregoing, (i) upon the effectiveness of an Incremental Revolving Facility Commitments are secured by the Collateral ratably with (orCommitment of any Incremental Revolving Lender, to the extent agreed by the applicable such Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers Lender shall be deemed to have acquired, on the terms set forth in Pro Forma Compliance after giving effect Section 2.05, participations in [[NYCORP:2679581v6:4454W:02/23/07--03:20 p]] outstanding Revolving Letters of Credit equal to such Incremental Term Loan Revolving Lender’s Applicable Revolving Percentage and (ii) upon the effectiveness of an Incremental Tranche A LC Commitment and/or of any Incremental Tranche A LC Lender, such Incremental Tranche A LC Lender (x) shall deposit in the Tranche A Deposit Account an amount in dollars equal to such Incremental Tranche A LC Lender’s Incremental Tranche A LC Commitment (the amount of such deposit actually made being referred to herein as the “Incremental Tranche A Deposit” of such Incremental Tranche A LC Lender), (y) shall be bound by the agreements and acknowledgements of the Tranche A LC Lenders set forth in Section 2.05(o), 2.05(p) and 2.05(q) (and shall be deemed to have granted a security interest in its Incremental Tranche A Deposit as set forth in Section 2.05(o)) and (z) shall be deemed to have acquired, on the terms set forth in Section 2.05, participations in outstanding Tranche A Letters of Credit equal to such Incremental Tranche A LC Lender’s Applicable Tranche A LC Percentage. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Facility Commitments Commitment or any Incremental Tranche A LC Commitment (and the Loans to be made thereunder concomitant funding of the Incremental Tranche A Deposit), the Applicable Revolving Percentage and the application of Applicable Tranche A LC Percentage, as the proceeds therefrom as if made case may be, shall automatically be adjusted to reflect such effectiveness (and applied on such datefunding).
(df) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably that it deems necessary or advisable to ensure that (i) all Incremental Term Loans (other than the Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each Borrowing . This may be accomplished at the discretion of the applicable Class Administrative Agent by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Revolving Facility Loans Eurodollar Term Borrowing on a pro rata basis, even though as a result thereof such Incremental Term Loan may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). The Borrowers agree that Section 2.16 shall apply to any Any conversion of Eurocurrency Eurodollar Term Loans to ABR Term Loans reasonably required by the preceding sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Eurodollar Term Borrowing then, subject to Section 2.13(c), the interest rate applicable to such Incremental Term Loan for the remainder of such Interest Period shall equal the Adjusted LIBO Rate for a period approximately equal to the remainder of such Interest Period (as determined by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) two Business Days before the date on which such Permitted Amendment Incremental Term Loan is requested to become effective (which shall not be less than 10 Business Days nor more than 30 Business Days after made) plus the date of such notice). 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 madeApplicable Rate.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Credit Agreement (Healthsouth Corp)
Incremental Commitments. (a) The Borrowers mayshall have the right, by written notice to without requiring the consent of the Administrative Agent (except as otherwise provided in this Section 2.15) or the Lenders (except for the Issuing Lenders as provided below), to request at any time and from time to time, request Incremental Term Loan Commitments and/or Incremental time after the Effective Date and prior to the Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount from Commitment Termination Date that one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (and/or one or more
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, (i) the Credit Parties, the Administrative Agent and each such Lender or other Eligible Transferee which may include any existing Lender) willing agrees to provide such an Incremental Term Loans and/or Commitment (each, an “Incremental Revolving Facility CommitmentsLender”) shall execute and deliver to the Borrowers and the Administrative Agent an Incremental Commitment Agreement,
(c) It is understood and agreed that the Incremental Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, in their own discretion; provided, that pursuant to each Incremental Revolving Facility Lender Commitment Agreement shall constitute part of, and be subject to added 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Total Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers Commitment and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption constitute a Lender for all purposes of this Agreement and such each 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateCredit Document.
(d) Each At the time of any provision of Incremental Commitments pursuant to this Section 2.15, each Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the parties hereto hereby agrees that Lenders, and incur additional Revolving Loans from certain other Lenders (including 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 LoansLenders), when originally made, are included in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of outstanding applicable Class of Term Revolving Loans on a pro rata basis, and (ii) all on the basis of their respective Revolving Facility Loans in respect of Incremental Revolving Facility Loan Commitments (other than Other Incremental after giving effect to any increase in the Total Revolving Loans), when originally made, are included in each Borrowing Loan Commitment pursuant to this Section 2.15) and with the Borrowers being obligated to pay to the respective Lenders any costs of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree that type referred to in Section 2.16 shall apply to 2.11 in connection with any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoingsuch repayment and/or Borrowing.
(e) The Borrowers may, by written notice to At 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 any provision of Loans and/or Incremental Commitments (each Class subject to such a Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowersthis Section 2.15, as the case may be. Such notice shall set forth (i) all dollar thresholds included in any determination made with respect to Excess Availability shall be increased automatically in an amount equal to the terms and conditions of percentage by which the requested Permitted Amendment Incremental Commitments increase the Total Revolving Loan Commitments and (ii) at 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 Company’s request, the date Maximum Letter of such notice). Permitted Amendments shall become effective only Credit Amount, the Maximum Swingline Amount and the commitments of the Issuing Lenders and the Swingline Lender with respect thereto, shall each be increased, ratably, 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 take account of any Accepting Lender, only with respect Incremental Commitments provided pursuant to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereofthis Section 2.15. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.2.16
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; providedprovided that in the case of Incremental Revolving Facility Commitments either, that at the election of the Borrower, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which provided that the Administrative Agent shall withhold approval shall not be unreasonably withheld) unless if any of the L/C Issuers object to such Incremental Revolving Lender is a Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, an Affiliate and no Letters of a Lender or an Approved FundCredit may be requested by the Borrower under, such Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or Term B-1 Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one the Term B Loans or more existing Classes of Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term BB-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term BB-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the same Borrower), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as an existing Class of Term Loans determined in good faith by the Borrower) or (yz) 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 and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the Term BB-1 Facility Maturity Date in effect on the date of incurrence (provided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term BB-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term BB-1 Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, Term BB-1 Loans or Other Term Loans) (provided that this clause (iv) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Other Incremental Revolving Loans shall rank pari passu Term BB-1 Facility Maturity Date in right effect on the date of payment and of security with the Revolving Facility Loans, incurrence),
(v) the except as to pricing, final maturity date of any Other Incremental Revolving Loans shall be no earlier than 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 Revolving Facility Maturity Date andwith respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, except as subject to pricingclause (vi) and (vii) of this proviso, amortization be determined by the Borrower and final maturity datethe 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) then-current market terms (as determined in good faith by the same 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 Revolving Facility Loans Borrower) or (yz) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Maturity Date with respect to the Initial Revolving Loans; provided, further that the interest rate margin ,
(which shall be deemed viii) with respect to include all upfront or similar fees or original issue discount payable to all Lenders providing such any Other Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to Section 2.21(a) that (xw) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower and, (yx) ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan BB-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term BB-1 Loans and/or on the Revolving Facility Loans; ClosingSecond Amendment Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term BB-1 Loans and/or Revolving Facility Loans, respectively, on the ClosingSecond Amendment Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term BB-1 Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term BB-1 Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term BB-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term BB-1 Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 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’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the conditions set forth in paragraphs (b) extent required by the relevant Incremental Assumption Agreement, no Event of Default shall have occurred and (c) of Section 4.01 shall be satisfied continuing or would result therefrom and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing or would result therefrom.
(d) On the date of the making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary set forth in Section 2.07 orý Section ý2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurocurrency Loans of the relevant Class and which end on the last day of such Interest Period. Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made.
(f”) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, will be established under this Agreement shall be deemed amended to the extent by implementing an Incremental Term Loan for such Lender (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class if such Lender is extending an existing Term Loan (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.such exten
Appears in 1 contract
Sources: Incremental Assumption Agreement and Second Amendment to Credit Agreement (Playtika Holding Corp.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 10.0 million and a minimum amount of $25.0 50.0 million or equal to the remaining Incremental AmountAmount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make Term B-6-B Loans or Term B-7 Loans or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B-6-B Loans or Term B-7 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Extended Maturity Revolving Loan Facility Commitments or commitments to make revolving loans with pricing interest rates and/or amortization fees and/or maturity and/or other terms different from the Revolving Loans under the Extended Maturity Revolving Facility Commitments (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 pricinginterest rates, amortization and final maturity datedate (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 (x) the same terms as an existing Class of the Term B-6-B Loans or Term B-7 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 earliest of the maturity date of the Term B-7 Loans or the latest Term B Facility Maturity Date in effect on the date of incurrence, (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 thenTerm B-6-outstanding Class of B Loans or Term Loans with the longest weighted average life to maturityB-7 Loans, (iv) the Other Incremental Revolving Loans shall rank pari passu in right of payment except as to interest rates, fees and of security with the Revolving Facility Loansfinal maturity date (which shall, subject to clause (v) of this proviso, be determined by the final maturity date of any Other Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans under the Extended Maturity Revolving Facility Commitments or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viv) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed Maturity Date applicable to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Term Loans and/or Extended Maturity Revolving Facility Loans, respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments. 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 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowersbe continuing or would result therefrom, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Commitment Commitments and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that the Borrower shall not be required to be in such Pro Forma Compliance with respect to Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments not to exceed $500.0 million in the aggregate since the Amendment Effective 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 or with respect to Incremental Term Loan Commitments or Incremental Revolving Facility Commitments incurred under clause (1) or (2) of the definition of “Incremental Amount” 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 Incremental Term Loans)) in the form of additional Term B-6-B Loans or Term B-7 Loans, when originally made, are included in each Borrowing of outstanding applicable Class of Term B-6-B Loans or Term B-7 Loans, as applicable, on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental with respect to any Revolving Loans)Facility, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans under such Revolving Facility on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term B-6-B Loans or Term B-7 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 earliest of the maturity date of the Term B-7 Loans and the terms and conditions thereof. The Administrative Agent 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 promptly notify each Lender be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity (which shall be determined by the effectiveness of each Loan Modification AgreementBorrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall (x) be a Revolving Facility Commitment with the same terms as the Extended Maturity Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (v) all Extended Term Loans, Extended Revolving Facility Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (“Refinancing Term Loans”), the First Lien Net Proceeds of which are used to repay Term Loans pursuant to Section 2.11(h). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent; provided that: (i) before and Commitments after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the Accepting Lenders 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 Affected Class Term B-6-B Loans or Term B-7 Loans; and (including iii) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and final maturity which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) shall be substantially similar to, or less favorable to the Lenders providing such Refinancing Term Loans than, those applicable to the Term B-6-B Loans or Term B-7 Loans except to the extent such covenants and other terms apply solely to any amendments necessary to treat period after the Loans and Commitments latest final maturity of the Accepting Lenders Term Loans in effect on the date of the Affected Class as Other incurrence of such Refinancing Term Loans. In addition, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, Borrower may establish Refinancing Term Loans to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions refinance and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.replace all or any portion
Appears in 1 contract
Sources: Amendment Agreement (Caesars Entertainment Operating Company, Inc.)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval 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 FundFund 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 $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, borrowers, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, borrowers, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental 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 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 that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans shall rank pari passu or or, at the option of the Borrowers, junior in right of payment and security with the Term B Loans or shall be unsecured (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 (iivii) below),
(iii) other than with respect to an aggregate principal amount at any time outstanding not to exceed the Maturity Limitation Excluded Amount, the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, except as to pricing, amortization and amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (x) substantially the same terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) other than with respect to an aggregate principal amount at any time outstanding not to exceed the Maturity Limitation Excluded Amount, (iii) the weighted average life Weighted Average Life to maturity Maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental Revolving Loans shall rank pari passu in right of payment and security with the Initial Revolving Loans or, at the option of the Borrowers, junior in right of security with the Initial Revolving Facility Loans or shall be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) substantially the same terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or incurred prior to the twelve month anniversary of the Fourth Restatement Effective Date that ranks pari passu in right of security with the Term B Loans (other than Other Incremental Revolving Loan) Term Loans which constitute MFN Excluded Loans), the All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Fourth Restatement Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Fourth Restatement Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(viii) with respect to the incurrence of any Incremental Revolving Loans or any Other Revolving Loans, the Borrowers shall be in compliance with the Financial Covenant on a Pro Forma Basis;
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis 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;
(x) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as Facility Commitments that is not a Loan Party; and
(xi) the case may be (which Other Revolving Loans and Other Term Loans shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than denominated in U.S. Dollars and borrowed by the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Borrowers; Each of the parties party hereto hereby agrees that, 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 amendment “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, 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, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clauses (b) and (c) of Section 4.01 shall be satisfied (subject to Section 1.07 for a Limited Condition Acquisition) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, Borrowers 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Fourth Restatement Effective Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Commitments, if secured, are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect with respect to such Incremental any Other Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made thereunder incurred by a Foreign Subsidiary, such other collateral and guarantee documentation with respect to any Foreign Subsidiary or any asset of Foreign Subsidiaries as the application of Administrative Agent may reasonably request to implement the proceeds therefrom as if made collateral and applied on such dateguarantee arrangements contemplated by this Section 2.21 with respect thereto).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan or Extended Revolving Facility Commitment, as applicable, shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to which the Administrative Agent (or such Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: First Lien Credit Agreement (Zurn Water Solutions Corp)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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) 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iva) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Initial Term Loans Loan Commitments or commitments to make term loans with pricing and interests rates and/or amortization and/or maturity and/or other terms different from one or more existing Classes of the Initial Term Loans (“Other Incremental Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization and/or maturity and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”).;
(b) The Borrowers Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to an Incremental Assumption Agreement.
(c) 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii), (iii), (vi), (vii) and (ix) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) the same substantially similar terms as an existing Class of the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(▇▇) the final maturity date of any Other Term Loans shall be no earlier than the Initial Term Loan Facility Maturity Date,
(iii) the weighted average life Weighted Average Life to maturity Maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Initial Term Loans with the longest weighted average life to maturity, 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 amortization, commitment reduction, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (v), (vi), (viii) and (ix) 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) the same substantially similar terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(viv) the weighted average life to final maturity date 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; providedearlier than, further that the interest rate margin (which and shall be deemed to include all upfront require no scheduled amortization or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term Loans and/or mandatory commitment reductions prior to, the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Maturity 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 require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Initial Revolving Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.;
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 CommitmentsLoans; provided, that that:
(i) any commitments to make additional Term B Loans shall have the same terms as the Term B Loans,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, 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, (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 B Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as the Revolving Facility Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(viiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Revolving Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the Term B Loans,
(v) [reserved],
(vi) [reserved],
(vii) with respect to any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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;
(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
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Commitments that is not a Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyParty. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the conditions set forth in paragraphs (b) extent required by the relevant Incremental Assumption Agreement, at time of and (c) immediately after such Borrowing, as applicable, no Event of Section 4.01 Default or Default shall have occurred and be satisfied continuing and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on of a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loansdifferent Class), when originally made, are included in each Borrowing of the outstanding applicable Class of outstanding Revolving Facility Term Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans, on a pro rata basis (eachbased, a 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 on the same terms (“Loan Modification OfferPro 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 of such Class and to otherwise modify the terms of such Lender’s Loans of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class 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 all between the Lenders of one or more Classes of Loans and/or Commitments Borrower and any such Lender (each Class subject to an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such a Lender if such Lender is extending an existing Term Loan Modification Offer(such extended Term Loan, an “Affected ClassExtended Term Loan”) to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be). Such notice Each Pro Rata Extension Offer shall set forth (i) the terms and conditions of the requested Permitted Amendment and (ii) specify the date on which such Permitted Amendment is requested to become effective (the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not be less earlier than 10 Business Days nor more than 30 five Business Days after the date of such notice). Permitted Amendments shall become effective only with respect on which notice is delivered to the Loans and Commitments of Administrative Agent (or such shorter period agreed to by the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, Administrative Agent 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 madeits reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender applicable Extended Term Loans; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the effectiveness 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 each Loan Modification Agreement. Each this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), and (v) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Extended Term Loans evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and only furnished to the other parties hereto.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan. For purposes of this Agreement and the other Loan Documents, if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including, without limitation, this Section 2.21), (i) the aggregate amount of Extended Term Loans will not be included in the calculation of the Incremental Amount, (ii) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan implemented thereby, (v) all Extended Term Loans and all obligations in respect thereof shall be Loan Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations relating to an existing Class of Term Loans of the relevant Loan Parties under this Agreement and the other Loan Documents and (vi) there shall be no obligor in respect of any such Extended Term Loans that is not a Loan Party.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not earlier than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided, that:
(i) before and Commitments after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date, each of the Accepting Lenders conditions set forth in Section 4.01(a) shall be satisfied (with references therein to “Closing Date” being deemed references to the applicable “Refinancing Effective Date”) and no Event of the Affected Class (including any amendments necessary to treat the Loans Default or Default shall have occurred and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, be continuing to the extent to reasonably requested required by the Administrative Agentrelevant Incremental Assumption Agreement governing such Refinancing Term Loans;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the Term Facility Maturity Date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall have received legal opinionsnot be subject to the provisions set forth in Section 2.21(b)(vii)) and optional prepayment or mandatory prepayment or redemption terms, board resolutions and/or an officer’s certificate consistent with those delivered on which shall be as agreed between the Restatement Effective Date under Section 4.02.Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable
Appears in 1 contract
Sources: Second Lien Credit Agreement (Hostess Brands, Inc.)
Incremental Commitments. (a) The Borrowers Company (for and on behalf of itself, or in its capacity as Borrower Representative on behalf of any other Borrower, as applicable) may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility 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 Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances, as the case may be, in their own sole discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Facility Lender (which is not an existing Lender) shall be subject to the approval requirements 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 FundSection 9.07. Such notice AMERICAS/2024254939.6 77 Sealed Air – 4th A&R Syndicated Facility Agt shall set forth (iA) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (iiB) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Credit Commitments are requested to become effective (the “Increased Amount Date”), ) and (iiiC) in the case of Incremental Revolving Facility Commitments, (i) whether such Incremental Revolving Facility Term Commitments are to be Revolving Loan Commitments or commitments to make revolving loans term advances with pricing and/or amortization terms different from the Revolving Loans then-outstanding Term Advances (“Other Incremental Revolving LoansTerm Advances”), and ) and/or (ivii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Revolving Credit Commitments are to be Revolving Credit Commitments or commitments to make term loans revolving advances with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans the then-outstanding Revolving Credit Advances (“Other Incremental Term LoansRevolving Credit Advances”).
(b) The Borrowers 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 Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lenderrequest. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans Advances and/or Incremental Revolving Facility CommitmentsCredit Advances to be made thereunder, and shall be made (x) on terms and conditions agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the Agent; provided, that (i) the Other Incremental Term Loans Advances and Other Revolving Credit Advances shall rank pari passu or junior in right of payment and of security with the Term B LoansAdvances and Revolving Credit Advances, as applicable, (ii) the final maturity date of (A) any Other Incremental Term Loans Advances shall be no earlier than the Latest Maturity Scheduled Term Loan Termination Date and, except as to pricing, amortization and final maturity date, shall have (xB) the same terms as an existing Class of Term Loans or (y) such other terms as any Other Revolving Credit Advances shall be reasonably satisfactory no earlier than the scheduled Termination Date applicable to the Administrative AgentRevolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Incremental Term Loans Advances 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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 Term Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable outstanding immediately prior to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect execution and delivery of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 Agreement requirement shall be amended to the extent (but only to the extent) necessary to reflect the existence that no Specified Event of Default shall have occurred and terms of the be continuing or would result from such Incremental Term Loan Commitments Advance and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any Credit Advance) shall have occurred and be continuing or would result from 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 heretoIncremental Term Advances and/or Incremental Revolving Credit Advances.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Credit Commitment shall become effective under this Section 2.21 2.04 unless (i) on the date of such effectiveness, the conditions representations and warranties set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied true and correct (in the case of a Limited Condition Acquisition, to the extent required under Section 1.14) and the Administrative Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowersapplicable Borrower, (ii) the Administrative Agent shall have received customary (or waived, in accordance with the terms of the relevant Incremental Assumption Agreement) legal opinions, board AMERICAS/2024254939.6 78 Sealed Air – 4th A&R Syndicated Facility Agt resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, and consistent with those delivered on the Closing Date under Section 3.01 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdownsCollateral Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans Advances and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Credit Advances are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans Advances and Revolving Facility Loans Credit Advances, and (iii) subject to Section 1.14, the Borrowers shall would be in Pro Forma Compliance after 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 Loan Commitment and/or Incremental Revolving Facility Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and the Loans 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 Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans Advances and/or Incremental Revolving Credit Advances (other than Other Incremental Term LoansAdvances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans Advances or Revolving Credit Advances 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to timetime after the Closing Date, and prior to the Revolving Facility Loan Maturity Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed that the Incremental Amount from be provided by 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, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Loan Commitments are to be Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Revolving Loans shall have the same guarantees as and rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Revolving Facility Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, 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, (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 pricing and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or Loans, as applicable, and (y) intercreditor arrangements and such other terms as shall be reasonably satisfactory to the Administrative Agent, Agent and (viii) the weighted average life to final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyMaturity Date. 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 Revolving Loan Commitments and/or 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs both before and after such effectiveness, (bx) there is no Default or Event of Default and (cy) of Section 4.01 the Borrower shall be satisfied and 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 the BorrowersBorrower and containing calculations in reasonable detail demonstrating compliance with the requirement contained in preceding subclause (i)(y), and (iiiii) 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 Original Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental 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 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that (i) each Incremental Revolving Facility 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 and (ii) each Incremental Revolving Facility Commitment shall increase either the U.S. Revolving Facility Commitments or the Canadian Revolving Facility Commitments and shall be on the same terms as the existing U.S. Revolving Facility Commitments or Canadian Revolving Facility Commitments, as applicable, and in all respects shall become a part of a Lender the U.S. Revolving Facility or an Approved FundCanadian Revolving Facility, as applicable, hereunder on such terms; provided that the Applicable Margin (including the Pricing Grid) and the Commitment Fee applicable to the existing Revolving Facility Commitments that is being increased by such Incremental Revolving Facility Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any Incremental Revolving Facility Commitments to comply with this clause (ii); and provided further, that up to (i) $100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of FILO Commitments, subject to the requirements of clause (b) of this Section 2.21 and (ii) $100 million of the Incremental Revolving Facility Commitments in the aggregate may be provided in the form of Incremental European Revolving Commitments, subject to the requirements of clause (c) of this Section 2.21; provided further, that the Canadian Revolving Facility Commitments shall not exceed $100 million. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 5 million and a minimum amount of $25.0 25 million or equal to the remaining Incremental Amount), (ii) the aggregate amount of Incremental Revolving Facility Commitments, which shall not exceed the Incremental Amount, (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iiiiv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be will constitute U.S. Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Canadian Revolving Loans (“Other Incremental Revolving Loans”)Facility Commitments, and (ivv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Revolving Facility Commitments are to will constitute FILO Commitments (it being understood that (x) all FILO Commitments shall be commitments to make term loans with pricing and/or amortization requested on a single Increased Amount Date, and (y) the terms identical to an existing Class of Term Loans or commitments to make term loans with pricing such FILO Commitments, including pricing, shall be set forth in such notice, if applicable, and amortization terms different from one or more existing Classes of Term Loans (“Other shall be as agreed by the relevant Incremental Term Loans”Revolving Lenders, the Borrowers, and the Administrative Agent).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect increase the existence and terms U.S. Revolving Facility or the Canadian Revolving Facility, as the case may be, by the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby thereby, except as provided for in Section 9.08(erequired by the last sentence of this clause (b) and as required by clause (c). 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. In addition, the Borrowers and each Incremental Revolving Lender accepting a FILO Commitment shall execute and deliver to the Administrative Agent an amendment to (i) this Agreement, incorporating the FILO Subfacility on customary terms as are reasonably acceptable to the Administrative Agent, including (w) reallocations of outstanding Revolving Loans, if necessary, to evidence the initial Borrowing under the FILO Subfacility, (x) the addition of voting provisions in Section 9.08 that relate solely to the FILO Subfacility, (y) the addition of assignment provisions in Section 9.04 allowing for the assignment of Revolving Facility Commitments, or FILO Commitments, as the case may be, on a standalone basis, and (z) a prohibition on optional prepayments of the FILO Loans at any time when Revolving Loans, and (ii) an amendment to Section 5.02(b) of the U.S. Collateral Agreement or Section 5.02(b) of the Canadian Collateral Agreement, as applicable, executed by the Collateral Agent (as defined therein) in order to provide for the payment of Obligations due to the FILO Lenders in a customary fashion following the payment in full of all other Obligations of the Revolving Lenders and cash collateralization of outstanding Letters of Credit, but prior to any payments in respect of Bank Products (as defined in the U.S. Collateral Agreement or the Canadian Collateral Agreement, as applicable) (other than Noticed Bank Products).
(c) Incremental European Revolving Commitments shall be established pursuant to an amendment to this Agreement signed by the Company, the other applicable borrowers under such Incremental European Revolving Facility, the Lenders providing such Incremental European Revolving Commitments and the Administrative Agent; provided that (i) the borrowers under any such Incremental European Revolving Facility shall be one or more Restricted Subsidiaries of the Company organized under the laws of the United Kingdom, the Netherlands or Germany, (ii) availability under such Incremental European Revolving Facility shall be based on a borrowing base of the assets of the applicable borrowers and, as a condition to the establishment of an Incremental European Revolving Commitment, the Administrative Agent shall have received the results of a reasonably satisfactory field examination and appraisal with respect to the assets to be included in the borrowing base with respect to such Incremental European Revolving Facility, (iii) the advances rates with respect to the borrowing base applicable to such Incremental European Revolving Facility shall not exceed the advance rates applicable to the Canadian Borrowing Base or the U.S. Borrowing Base, (iv) the eligibility requirements with respect to the assets to be included in the borrowing base applicable to such Incremental European Revolving Facility shall be reasonably acceptable to the Administrative Agent, (v) the Collateral Agent shall have a valid and perfected, first priority Lien in the assets to be included in the borrowing base for the applicable Incremental European Revolving Facility (or substantially all assets, in the case of borrowers organized in certain jurisdictions as determined by the Collateral Agent or as otherwise agreed between the Company and the Collateral Agent), (vi) any Incremental European Revolving Facility shall be guaranteed by the Loan Parties and secured by the Collateral on a pari passu basis with the Obligations, (vii) as a condition to the establishment of an Incremental European Revolving Commitment, each Lender under such Incremental European Revolving Facility shall have received all documentation and other information about the relevant borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and to the extent such borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have received, to the extent requested, a Beneficial Ownership Certification in relation to such borrower, (viii) this Agreement shall be amended such that any and all thresholds or triggers based on Combined Availability or Specified Availability shall take into account the availability with respect to the relevant Incremental European Revolving Facility, (ix) any Incremental European Revolving Facility may include letter of credit or swingline facilities as agreed among the Company, the Administrative Agent and the relevant Lenders, and (x) the terms of such Incremental European Revolving Commitments shall otherwise be substantially similar to the terms applicable to the U.S. Revolving Facility including with respect to maturity and pricing.
(d) 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 applicable conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied satisfied, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersCompany and/or the Canadian Borrower, as applicable, 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 Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Amendment and Restatement Effective Date under Section 4.02 of the Unamended Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdownsDocuments) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and all other Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(de) 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 Revolving Loans in respect of Incremental Term Loans (other than Other Incremental Term Loans)Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding applicable Class of Term Revolving Loans on a pro rata basis, and (ii) all Revolving Facility except that with respect to FILO Commitments, such actions shall ensure FILO Loans in respect an amount equal to the lesser of Incremental (x) the aggregate FILO Commitments or (y) the then-current Borrowing Base applicable to the FILO Subfacility are drawn in full prior to any other Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basisbeing borrowed at any time. The Borrowers agree that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans or BA Equivalent Loans to Canadian Prime Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global Group Inc)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments or commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 CommitmentsLoans; provided, that (i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that, only with respect to Other Term Loans incurred within eighteen months after the Closing Date, if the initial yield on the Other Term Loans (as determined by the Administrative Agent as set forth below) 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 (A) 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 (B) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, and (viiii) the weighted average life to maturity of any Other Incremental Revolving Term Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility B Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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)10.01. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. For purposes of clause (i) above, the initial yield on any Incremental Term Loan Commitment shall be determined by the Administrative Agent to be equal to the sum of (x) the interest rate margin above the Eurodollar Rate for loans under the Incremental Term Loan Commitment that bear interest based on the 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 Eurodollar Rate that would be in effect for a three month Interest Period commencing on such date) and (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four).
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.12 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 5.01 shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower, (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 Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and B Loans, (iii) the Borrowers no Default or Event of Default shall have occurred and be in Pro Forma Compliance continuing or would result therefrom, and (iv) before and after giving effect to such any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and Loans (including any Other Term Loan), the Loans to be made thereunder and the application aggregate par principal amount directly held by all Affiliated Lenders shall not, collectively, exceed 25.0% of the proceeds therefrom as if made and applied on such dateaggregate par principal of the then outstanding principal amount of all Term Loans (including any Incremental Term Loans).
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans)) in the form of additional Term B Loans, when originally made, are included in each Borrowing of 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 Incremental Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility B Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 3.05 shall apply to any conversion of Eurocurrency Eurodollar Rate Loans to ABR Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Company may, by written notice to the General Administrative Agent from time to timeAgent, request Incremental Term Loan additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or Incremental Revolving Facility additional Japanese Commitments, as applicable, in an aggregate amount not to exceed the Incremental Facility Amount at such time, from one or more Incremental Term Persons who will become U.S. Revolving Lenders, Multicurrency Lenders and/or Incremental Revolving Facility Japanese Lenders (which may include any existing Lender) Lender willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may besame, in their own discretion); provided, provided that each Incremental Revolving Facility such Person, if not already a Lender hereunder, shall be subject to the approval of the General Administrative Agent and, if assuming a U.S. Revolving Commitment, the Issuing Lenders (which approval approvals 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 Term Loan additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or Incremental Revolving Facility additional Japanese Commitments being requested (which shall be in minimum increments of $5.0 million 1,000,000 and a minimum amount of $25.0 million 10,000,000 or equal to the remaining Incremental Facility Amount), and (ii) the date on which such Incremental Term Loan additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or Incremental Revolving Facility additional Japanese Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to which shall not be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one less than 10 Business Days or more existing Classes than 60 days after the date of Term Loans (“Other Incremental Term Loans”such notice, unless otherwise agreed to by the General Administrative Agent).
(b) The Borrowers Company and each Incremental Term additional U.S. Revolving Lender, additional Multicurrency Lender and/or Incremental Revolving Facility additional Japanese Lender shall execute and deliver to the General Administrative Agent an Incremental Assumption Agreement and such other documentation as the General 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 .
(ic) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that the Administrative Agents may take any and all actions as may be reasonably necessary to ensure that, upon after giving effect to any increase in the effectiveness Revolving Commitments of any Incremental Assumption AgreementClass pursuant to Section 5.05(a), the outstanding Revolving Loans (if any) of such Class are held by the Lenders in accordance with their new Applicable Percentages of such Class. This may be accomplished at the discretion of the General Administrative Agent by (i) requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Borrowing of such Class, (ii) causing non-increasing Lenders to assign (at par, with accrued interest and fees) portions of their outstanding Revolving Loans of the affected Class to Persons who are becoming Lenders (or increasing their Commitments of the applicable Class), or (iii) any combination of the foregoing. Any prepayment or assignment described in this Agreement paragraph (b) shall be amended subject to the extent (Section 5.11, 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 such deemed amendment may shall otherwise be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties heretowithout premium or penalty.
(cd) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental increase in any Revolving Facility Commitment shall become effective under this Section 2.21 unless 5.05 unless, (i) on the date of such effectivenessthereof, the conditions set forth in paragraphs (bc) and (cd) of Section 4.01 7.02 shall be satisfied and the General Administrative Agent shall have received a certificate to that effect dated such date and executed by the President, a Responsible Vice President or a Financial Officer of the BorrowersCompany, and (ii) the General Administrative Agent shall have received customary (with sufficient copies for each of the Lenders) 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 Effective Date under paragraphs (b) and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 madeSection 7.01.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(ba) The Borrowers 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 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 that:
(i) the Other Incremental any commitments to make additional Term B Loans, Term B-2 Loans and/or additional Initial Revolving Loans shall rank pari passu or junior in right of payment and of security with have the same terms as the Term B Loans, Term B-2 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 Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B Facility Maturity Date and, and (B) except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B Loans,
(ivv) the Other Incremental 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 payment and of security with the Liens on the Collateral securing the Initial Revolving Facility Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, amortization and 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), such Other Revolving Loans shall have (x) the same substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, and (vi) the weighted average life All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to maturity of any Other Incremental Revolving the Term B Loans shall be no shorter than on the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; providedClosing Date, further except 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental such Subject Term Loan and/or Other Incremental Revolving Loan shall be may exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental such Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed B Loans on the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(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) (A) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party and (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other B) no Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyCommitments shall be secured by any assets that do not constitute Collateral. Each of the parties party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(cb) 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, (A) solely to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs clause (b) and (cd) 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 BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 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 the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Security Documents Collateral Documents, as applicable, and title endorsement bringdownsdate-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(dc) 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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(d) Notwithstanding anything to the contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to clauses (e) The Borrowers maythrough (i) of this Section 2.21), by written notice pursuant to the Administrative Agent from time to time, make one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(fe) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other applicable Extended Term Loans, Other Revolving Loans and/or Other Extended Revolving Credit Facility Commitments). Notwithstanding the foregoing; provided, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.that (i) except as
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or (x) commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental additional 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 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 the Term B 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 and final maturity date, 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, (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, shall have (x) on the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity of any Other Incremental Initial Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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, provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be subject subject, to the extent the same would be required for an assignment under Section 9.04, to the approval of the Administrative Agent Agent, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender delayed or an Approved Fundconditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of 2021 Term Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the 2021 Term Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that: (i) any commitments to make additional 2021 Term Loans, additional Initial Revolving Loans and/or additional Initial2025 Extended Revolving Loans shall have the same terms as the 2021 Term Loans or, Initial Revolving Loans or 2025 Extended Revolving Loans, respectively, (ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and of security with the Term B Loans and Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) in right of security with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (iiy) in right of payment with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be subject to a 111 Doc#: US1:15347125v11 subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured, (iii) the final maturity date of any such Other Incremental Term Loans (except for (x) customary bridge loans, (y) Customary Term A Loans or (z) Other Term Loans in an aggregate amount not to exceed the Inside Maturity Exception Amount (clauses (x), (y) and (z), collectively, the “Inside Maturity Debt”)) shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as an existing Class of 2021 Term Loans or (y) such other terms 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 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 applicable Incremental Term Lenders in their sole discretion), such Other Term Loans shall have terms that are current market terms for such type of Indebtedness (as reasonably determined by the Borrower in good faith), (iv) [reserved], (v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, 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 same 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 as at the time of issuance thereof), (vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2025 Extended 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 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 terms as shall be 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 satisfactory acceptable to the Administrative Agent), and (vivii) the weighted average life with respect to maturity of any syndicated Other Incremental Revolving Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Revolving Facility Loans; 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 Incremental Term Loan and/or Other 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 Revolving Loan) Amount (other than through reclassification), the All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be may not exceed the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of 2021 Term Loans and/or Revolving Facility Loans, respectively, on the First Amendment Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.75%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.75% (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “Term SOFR floor” as provided in the following proviso) applicable to such 2021 Term Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 “Term SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the 112 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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving LoanFacility Commitments that is not a Loan Party, as (B) the case may be (which borrower of any Incremental Term Facility shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term a Loan and/or Other Party and (C) the borrower of any Incremental Revolving Loan), is no more than 1/2 of 1% higher than Facility shall be the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrower. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (i) subject to the conditions set forth in paragraphs LCT Provisions, (bx) with respect to any Incremental Term Loan Commitment or Incremental Revolving Facility Commitment established to finance a Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement, no Specified Event of Default shall have occurred or be continuing or would result therefrom and (cy) with respect to any other Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, no Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowers, 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 and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date pursuant Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages extent required to be delivered on the Closing Date pursuant to Section 4.02 and other Security Documents and title endorsement bringdownsSection 5.10) as the Administrative Agent may reasonably require request, subject to Section 5.10(g), 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 set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) Loans; provided, that, solely to the Borrowers 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.extent required by 113 Doc#: US1:15347125v11
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Term Benchmark Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been made.shorter period agreed to by the Administrative Agent in its reasonable discretion). No consent of any Lender shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing 114 Doc#: US1:15347125v11
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and only with respect 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 and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class shall have no more restrictive covenants, taken as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agenta whole, to the extent Borrower, than any existing Class of Term Loans (in each case, except for such more restrictive covenants (I)(A) applicable only to reasonably requested by periods after the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on Latest Maturity Date in effect at the Restatement Effective Date under Section 4.02.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 adde
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is not prohibited by this Agreement, as of the date the definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or similar Investment is entered into) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the Initial Revolving Loans (“Other Incremental 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 on the same terms as the Term B Loans or (y) commitments to make term loans with pricing pricing, maturity, amortization, participation in mandatory prepayments and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization other terms different from one or more existing Classes of the Term B Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the 2021 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the 2021 Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term B-1 Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B-1 Loans (“Other Incremental Term Loans”).
(b) The Borrowers Borrower, each applicable Co-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 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 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 Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and of security with the Term B 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 (iivii) below),
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of 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, ,
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B-1 Loans;
(ivv) the Other Incremental 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 payment and of security with the 2021 Revolving Facility 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),
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the 2021 Revolving Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as the 2021 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ,
(vivii) the weighted average life with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B-1 Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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-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 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 such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party; and
(which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing x) any such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Other Revolving Facility 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, respectivelysuch 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 party hereto. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 required by the relevant Incremental Assumption Agreement and, to 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower, each applicable Co-Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementsuch Extending Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Incremental Assumption Agreement shall be deemed amended to specify the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and only with respect 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 and Commitments shall have (x) the same terms as an existing Class of the Accepting Lenders of the Affected Class Term Loans or (including any amendments necessary y) such other terms as shall be reasonably satisfactory to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless 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 extent remaining Weighted Average Life to reasonably requested 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 Administrative AgentBorrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have received legal opinions, board resolutions and/or (x) the same terms as an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.existing Class of Revolving Facility Commitments or (y) have such other terms as shal
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (a) The Borrowers Borrower or any Co-Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or, at the option of the Borrower or such Co-Borrower, at the time of incurrence of the Incremental Loans thereunder) from one or more 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 approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)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 Loan Commitments Facility Loans on the same terms as the 2024 Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or amortization other terms different from the 2024 Revolving Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of Term Loans or B-1 Loans, (y) commitments to make term loans with pricing and amortization terms identical to Term B-2 Loans or (z) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one the Term B-1 Loans or more existing Classes of Term B-2 Loans (“Other Incremental Term Loans”).
(b) The Borrowers Borrower, each applicable Co-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 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 that:
(i) any commitments to make additional Term B-1 Loans, Term B-2 Loans and/or 2024 Revolving Loans shall have the same terms as the Term B-1 Loans, Term B-2 Loans or 2024 Revolving Loans, respectively;
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or or, at the option of the Borrower, junior in right of payment and security with the Term
B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B 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 (iivii) below);
(iii) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term B-1 Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as an existing Class of 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, ;
(iiiiv) the weighted average life Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, B-1 Loans;
(ivv) the Other Incremental 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 payment and of security with the 2024 Revolving Facility 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);
(vvi) the final maturity date of any such Other Incremental Revolving Loans shall be no earlier than the 2024 Revolving Facility Maturity Date and, except as to pricing, amortization and 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) the same substantially similar terms as the 2024 Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, and ;
(vivii) the weighted average life (A) with respect 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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B-1 Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield by more than 0.50% (such difference, such 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 so 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 “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; and (B) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-2 Loans, the All-in Yield shall be the same as that applicable to the Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date, except that the interest rate margin All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-2 Loans on the Nineteenth Incremental Assumption and Amendment Agreement Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term B-2 Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-2 Loans shall be increased such that after giving effect to such increase, the Term B-2 Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term B-2 Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term B-2 Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-2 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-2 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2024 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party; and
(which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing x) any such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Other Revolving Facility 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, respectivelysuch 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 party hereto. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and 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 required by the relevant Incremental Assumption Agreement and, to 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 reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders set forth in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving LoansFacility Loans of a different Class), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency SOFR Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower, each applicable Co-Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Incremental A
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request establish Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment established for purposes of financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, as of the date the definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or more 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, provided that each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the approval of the Administrative Agent (and, solely in the case of Incremental Revolving Facility Lenders, the Issuing Banks), to the extent the same would be required for an assignment under Section 9.04 (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Term Lender is a Lender, an Affiliate of a existing Lender or such Incremental Revolving Facility Lender is an Approved Fundexisting Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested established (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 anticipated to become effective (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), [reserved] 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 pricing and/or amortization terms identical to an existing Class of Term A Loans or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term A Loans (“Other Incremental Term Loans”).
(b) The Borrowers Borrower, the Administrative Agent (if applicable) 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 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 that:
(i) any commitments to make additional Term A Loans and/or any Incremental Revolving Facility Commitments shall have the same terms as the Term A Loans or the Revolving Facility Commitments to make Initial Revolving Loans, respectively,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or junior in right of payment and of security with the Liens on the Collateral securing the Term B LoansA Loans or, at the option of the Borrower, be unsecured (iiprovided that if such Other Term Loans are unsecured, such Other Term Loans will be established as a separate facility from the then existing Term Loans subject to a Permitted Junior Intercreditor Agreement),
(iii) (A) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Term A Facility Maturity Date and, and (B) except as to pricing, amortization and 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 be substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms, taken as a whole, applicable to the Term A Loans (x) except to the same terms as an existing Class of Term Loans or (y) extent such covenants and other terms as shall be apply solely to any period after the Term A Facility Maturity Date or are otherwise reasonably satisfactory acceptable to the Administrative Agent, (iii) it being understood that, to the weighted average life to maturity extent any financial maintenance covenant is added for the benefit of any Other Incremental 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 Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life to maturity, A Loans,
(ivv) the Other Incremental Revolving Facility Commitments and Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of payment and of security with the Liens on the Collateral securing the Initial Revolving Loans,
(vi) except as to discounts and fees (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility LoansLenders in their sole discretion), (v) the final maturity date of any Other Incremental Revolving Facility Commitments and Incremental Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Initial Revolving Facility Loans or Loans,
(yvii) such other terms as shall be reasonably satisfactory with respect to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security and payment with the Term A Loans, if the All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan exceeds the All-in Yield in respect of such Term A Loans on the Closing Date by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term A Loans shall be increased such that after giving effect to such increase, the same as that 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 A Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans and/or prior to any increase in the Revolving Facility LoansApplicable Margin applicable to such Term A Loans then outstanding,
(viii) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory prepayment hereunder; except that the interest rate margin and
(ix) (A) there shall be no obligor in respect of any Other Incremental Term Loan and/or Other Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) there shall be no assets securing any Incremental Term Loan, Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood Commitment 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 three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelydo not constitute Collateral. Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrower and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the BorrowersBorrower (or, if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and 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 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 endorsement bringdownsdate-down and modification endorsements, which, in the case of such amendments and title date-down and modification endorsements, may be delivered on a post-closing basis to the extent permitted by the applicable Incremental Assumption Agreement) as the Administrative Agent may reasonably require request to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 dateLoans.
(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 LoansLoans of a different Class), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such Lender’s Loans 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 Affected Class as 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 Lender’s acceptance has been madeshorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and conditions thereof. The commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any other terms that would affect the rights or duties of any Issuing Bank, such terms as shall promptly notify each Lender as be reasonably satisfactory to such Issuing Bank, (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) than the effectiveness of each Loan Modification AgreementInitial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory prepayment hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Extended Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Extended R
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount (other than with respect to the Term B Loans constituting Acquisition Loans) not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or and amortization terms identical to an the Term A Loans (which may be part of such existing Class of Term Loans Class) or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term A Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of 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 amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing Class the Term A Loans; provided that, with the consent of the Borrower, the Incremental Assumption Agreement with respect to any Other Incremental Term Loans constituting Acquisition Loans may provide for (A) additional mandatory prepayment requirements so long as any such additional mandatory prepayment requirement applies on at least a pro rata basis to all then outstanding Classes of Term Loans and/or (B) an additional co-borrower incorporated or organized in the United States that is a wholly owned Subsidiary of the Borrower (provided that such co-borrower shall sign a joinder to this Agreement in form reasonably satisfactory to the Administrative Agent, shall become a co-borrower of each Facility hereunder and shall be jointly and severally liable for all obligations of the Borrower hereunder) or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Incremental Term Loans shall be no shorter than the remaining weighted average life 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 datedate 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, and (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 LoansLoans and (vii) the Other Incremental Revolving Loans and the Other Incremental Term Loans shall be denominated in Dollars and borrowed by the Borrower; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan incurred prior to the 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 interest rate margin All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or any such Other Incremental Revolving Loan) Loan may exceed the Applicable Margin for any other Class of Term Loans and/or Revolving Facility Loans, respectively, by no more than 1/2 of 1[*]% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed threefour-year life to maturity), or if it does so exceed such Applicable MarginAll-in Yield, such the Applicable Margin with respect to each Class of Term Loans and/or Revolving Facility Loans shall be increased so that the interest rate margin All-in Yield in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1[*]% higher than the Applicable Margin All-in Yield for each Class of Term Loans or Revolving Facility Loans, respectively. 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 in Section 9.08(e10.08(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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, except in the case of the Term B Loans constituting Acquisition Loans and the related Term B Loan Commitments (which Term B Loans shall only be subject to the conditions set forth in Section 4.03), 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.this
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Except during a Covenant Relief Period, the Borrowers may, by written notice to the Administrative Agent from time to timetime after the Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make revolving loans with pricing and amortization terms identical to an existing Class of Revolving Loan Commitments Facility Loans (which may be part of such existing Class) or commitments to make revolving loans with pricing and/or amortization terms different from the all existing Classes of Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or (other than upfront fees or original issue discount) and amortization terms identical to an the Term A Loans, Term A-1 Loans or Term A-2 Loans (which may be part of the applicable existing Class of Term Loans Class) or commitments to make term loans with pricing and amortization terms different from one the Term A Loans, Term A-1 Loans or more existing Classes of Term A-2 Loans (“Other Incremental 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 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) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B each existing Class of Loans, (ii) the final maturity date of any Other Incremental Term Loans shall be no earlier than the Latest date specified in clause (a) of the definition of Term Facility Maturity Date and, except as to pricing, amortization amortization, call premiums, call protection and final maturity date, shall have (x) the same terms as an existing the 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 then-outstanding Class of Term A Loans, Term A-1 Loans with the longest weighted average life to maturityand 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 datedate 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, and (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; provided, further that Loans and (vii) 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 Incremental Revolving Loans and the Other Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Loans shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin denominated in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined Dollars and borrowed by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyBorrowers. 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 in Section 9.08(e10.08(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 amendment “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, 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 BorrowersCompany, (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 and title endorsement bringdownsDocuments) 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) the one or more Classes of then-existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 thereunder and the application of the proceeds therefrom as if made and applied on such datedate (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 (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each outstanding Borrowing of outstanding 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting LenderRevolving Facility, only 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 respect individual Lenders from time to time to extend the maturity date of such Lender’s Loans and and/or Commitments of such Affected Class as and to which otherwise modify the terms of such Lender’s acceptance has been madeLoans 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 Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, amortization, call premiums, call protection, final maturity date and participation in prepayments (which shall, subject to clauses (ii) through (v) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as the Term A Loans, Term A-1 Loans or Term A-2 Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees and final maturity and the matters addressed by Section 2.21(b)(iv) (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms and conditions thereof. The Administrative Agent as the existing Revolving Facility Commitments or (y) have such other terms as shall promptly notify each Lender as be reasonably satisfactory to the effectiveness of each Loan Modification AgreementAdministrative 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. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitments pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than compliance with Section 2.21(e) through (i) and notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby, (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other 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 Credit Commitments). Notwithstanding Facility Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the foregoing, no Permitted Amendment associated Pro Rata Extension Offer; provided that the Borrowers shall become effective unless cooperate with the Administrative AgentAgent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, to the extent to reasonably requested by the Administrative Agentincluding, shall have received legal opinionswithout limitation, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.timing, rounding and
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Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Incremental Commitments. (a) The Borrowers Lead Borrower may, from time to time, by written notice to the Administrative Agent from time to timeAgent, request Incremental Term Loan Commitments and/or Incremental additional Revolving Facility Commitments, as applicableapplicable (collectively, in an amount not to exceed the “Incremental Amount Commitments”), from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lenderin the sole discretion of such Lenders) willing and/or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to provide $275,000,000; provided that, subject to Section 2.11(d) below, at the time of the incurrence of such Incremental Term Loans and/or Incremental Revolving Facility CommitmentsCommitments and immediately after giving effect thereto and to the use of the proceeds thereof, as the case may be, in their own discretionno Default shall have occurred and be continuing or would result therefrom; provided, further that (1) each Incremental Revolving Facility such Person, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in connection with any additional Revolving Commitment, the L/C Issuers and the Swingline Lender (which approval approvals shall not be unreasonably withheldwithheld or delayed), (2) unless Lead Borrower may make only three such requests and (3) no Lender shall be required or otherwise obligated to provide any Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved FundCommitment. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental (and applicable currency) or additional Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 1,000,000 and a minimum amount of $25.0 million or equal to the remaining Incremental Amount5,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental additional Revolving Facility Commitments are requested to become effective (which shall not be less than ten Business Days nor more than 60 calendar days after the “Increased Amount Date”)date of such notice, (iii) in unless otherwise agreed to by the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”Administrative Agent), and (iviii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans Loan Commitments or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of the Term Loans (“Other Incremental Term Loans”). All Incremental Term Loans shall be made in Dollars or in an Alternative Currency.
(b) The Borrowers and each Incremental Term Lender and/or Incremental additional 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 Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments or such Other Term Loans shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the or Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Incremental Term Loans as applicable, to be made thereunder. The Administrative Agent shall be no earlier than the Latest Maturity Date and, except promptly notify each Lender as to pricing, amortization and final maturity date, shall have (x) the same terms as an existing Class effectiveness of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other each 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectivelyAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving 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 Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment Incremental Commitments evidenced thereby and only with respect any increase to the Applicable Margins required by Section 2.11(c)(viii). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Lead Borrower’s consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Administrative Agent and in any event:
(i) shall rank pari passu in right of payment and of security with the existing Revolving Loans and the existing Term Loans;
(ii) all material terms of any additional Revolving Commitments (and the Revolving Loans made thereunder) shall be identical to the existing Revolving Commitments (and the Revolving Loans made thereunder) (excluding upfront and other similar fees paid at the closing of such Incremental Commitment);
(iii) in the Accepting Lenders case of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Incremental Term Loans, Other Revolving shall not mature earlier than the Latest Maturity Date of the Term Loans and/or Other Revolving Credit Commitments). Notwithstanding outstanding at the foregoingtime of incurrence of such Incremental Term Loans;
(iv) in the case of Incremental Term Loans, no Permitted Amendment shall become effective unless have Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(v) in the case of Incremental Term Loans, subject to clauses (iii) and (iv) above, shall have amortization determined by the Lead Borrower and the applicable Incremental Term Lenders;
(vi) in the case of Incremental Term Loans, subject to clause (viii) below, shall have an Applicable Margin determined by the Lead Borrower and the applicable Incremental Term Lenders;
(vii) in the case of Incremental Term Loans, may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of initial Term Loans hereunder, as specified in the applicable Incremental Assumption Agreement; and
(viii) without the prior written consent of any Loan Party, the Administrative Agent, to the extent to reasonably requested Swingline Lender, each L/C Issuer or any Lender, if the Effective Yield on any Other Term Loans (as determined by the Administrative Agent) established on or prior to the date that is eighteen (18) months after the Closing Date exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to as the “Yield Differential”) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Class of Term Loans, then the Applicable Margin for each such Class of Term Loans shall have received legal opinionsautomatically be increased by the Yield Differential, board resolutions and/or an officer’s certificate consistent with those delivered on effective upon the Restatement Effective Date under Section 4.02making of such Other Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent from time to time, request Each Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, 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 and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, Lender hereby agrees that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) its Revolving Facility Commitment will be increased by the amount of its Incremental Commitment set forth on Schedule 1 attached hereto effective as of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested First Amendment Effective Date (which shall be as defined in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental AmountSection 4 below), (ii) the date on which after giving effect to such Incremental Term Loan Commitments and/or Incremental increase, its total Revolving Facility Commitments are requested to become effective (Commitment will be the amount of its “Increased Amount Date”)Total Revolving Facility Commitment” set forth on Schedule 1 attached hereto, and (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are it shall continue to be Revolving Loan Commitments or commitments a Lender under the Credit Agreement. The parties hereto hereby acknowledge that this First Amendment constitutes the written notice required pursuant to make revolving loans with pricing and/or amortization terms different from Section 2.20(a) and Section 2.20(e) of the Revolving Loans Credit Agreement (“Other Incremental Revolving Loans”), and (ivas such sections are labeled after giving effect to the amendments described in Section 3(d) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”below).
(b) The Borrowers On the First Amendment Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Term Lender and/or Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Facility Lender shall execute Loans and deliver participations in Revolving Letters of Credit and Swingline Loans outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Facility Loans and participations in Revolving Letters of Credit and Swingline Loans being held by existing Lenders and Incremental Lenders ratably in accordance with their Revolving Facility Commitments after giving effect 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 addition of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify Commitments to 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 the Term B Loans, (ii) the final maturity date of any Other each Incremental Term Loans Commitment shall be no earlier than the Latest Maturity Date anddeemed, except as to pricingfor all purposes, amortization a Revolving Facility Commitment and final maturity dateeach Loan made thereunder shall be deemed, shall for all purposes, a Revolving Facility Loan and have (x) the same terms as an any existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, Revolving Facility Loan and (iii) the weighted average life each Incremental Lender shall become a Lender with respect 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 its 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 Commitment and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 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 heretomatters relating thereto.
(c) Notwithstanding the foregoing, no Each Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless Lender (i) on confirms that it has received a copy of the date of such effectivenessCredit Agreement, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied Parent Guarantee and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer other Loan Documents, together with copies of the Borrowersfinancial 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 First Amendment, (ii) the Administrative Agent shall have received customary legal opinionsagrees that it will, board resolutions independently and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by without reliance upon the Administrative Agent, consistent with those delivered the Collateral Agent or any other Lender or agent thereunder and based on the Closing Date and such additional customary documents and filings 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 amendments to the Mortgages iii) appoints and other Security Documents and title endorsement bringdowns) as authorizes the Administrative Agent may reasonably require and the Collateral Agent to assure that take such action as agent on its behalf and to exercise such powers under the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments Credit Agreement, the Parent Guarantee and the other Loan Documents as are secured delegated to Administrative Agent or the Collateral Agent by the Collateral ratably terms thereof, together with such powers as are reasonably incidental thereto and (or, to iv) agrees that it will perform in accordance with their terms all of the extent agreed obligations which by the applicable Incremental Term Lenders in terms of the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans Credit Agreement are required to be made thereunder and the application of the proceeds therefrom performed by it as if made and applied on such datea Lender.
(d) Each Lender party hereto (including, for the avoidance of the parties hereto doubt, each undersigned Lender that is not an Incremental Lender (if any)) hereby agrees that the Administrative Agent Borrower shall not be required to make any break funding payments to such Lender which may take any and all action otherwise be required under Section 2.16 of the Credit Agreement (as may be reasonably necessary in effect immediately prior to ensure that (ithe First Amendment Effective Date) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included solely resulting from the increase in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental the Revolving Facility Commitments effected pursuant to this First Amendment; provided, that each Lender’s waiver of such break funding payments set forth in this paragraph (other than Other Incremental Revolving Loans)d) is a limited, when originally madeone-time waiver, 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 and nothing contained herein shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by obligate the Administrative Agent or any Lender to effect the foregoing.
(e) The Borrowers maygrant any additional or future waiver with respect to, by written notice to the Administrative Agent from time to timeor in connection with, 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth (i) the terms and conditions any provision 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). 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 LendersCredit Agreement, the “Accepting Lenders”) and, in the case of Parent Guarantee or 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 madeother Loan Document.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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; providedprovided that in the case of Incremental Revolving Commitments either, that at the election of the Borrowers, (i) each Incremental Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the approval of the Administrative Agent (which provided that the Administrative Agent shall withhold approval shall not be unreasonably withheld) unless if any of the L/C Issuers object to such Incremental Revolving Lender is a Facility Lender) or (ii) the Letter of Credit Commitment may not be allocated under, an Affiliate and no Letters of a Lender or an Approved FundCredit may be requested by the Borrowers under, such Incremental Revolving Facility Commitments. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 20.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or Term B-1 Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one the Term B Loans or more existing Classes of the Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than, the terms and conditions, taken as a whole, applicable to the Term B Loans and the Term B-1 Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the same Borrowers), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as an existing Class of Term Loans determined in good faith by the Borrowers) or (yz) 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 and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the latest Term 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 Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with and the longest weighted average life Term B-1 Loans (without giving effect to maturity, (iv) any amortization or prepayments on the Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Term B Loans, the Term B-1 Loans or Other Term 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, 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 Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrowers and their Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrowers), (x) then-current market terms (as determined in good faith by the same Borrowers), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Revolving Facility Loans Borrowers) or (yz) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that (wa) is a Dollar denominated term loan, (b) is incurred prior to the twelve-montheighteen-month anniversary of the Closing Date, (x) has an outside maturity date less than one year after the latest maturity date of the initial Term B Loans, (y) is not incurred in connection with a Permitted Business Acquisition or any other Class acquisition or Investment that is not prohibited by this Agreement2020 Incremental Effective Date and (zc) ranks pari passu in right of Revolving Facility security with the Term BB-1 Loans; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of suchthe Term BB-1 Loans and/or Revolving Facility Loans, respectively, on the Closing2020 Incremental Effective Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term BB-1 Loans shall be increased so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term BB-1 Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term BB-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term BB-1 Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans a Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrowers) or (i) (with respect to the Borrowers) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to time, make one or more offers clauses (each, a “Loan Modification Offer”e) 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. Such notice shall set forth through (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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.Section
Appears in 1 contract
Sources: Incremental Assumption Agreement (Caesars Entertainment, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 5.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from one or more existing Classes of the Term B Loans (“Other Term Loans”) and (iv) in the case of Incremental Term Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii) through (iv) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the same Borrower and its Subsidiaries than, the terms and conditions, taken as an a whole, applicable to the Term B Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing Class at the time of incurrence of such additional Term Loans Facility), 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, or be unsecured (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, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and shall not be subject to clause (viii) below),
(iii) the weighted average life to final maturity date of any Other Incremental Term Loans shall be no earlier than the latest Term 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 Weighted Average Life to maturity Maturity of the then-outstanding Class of Term B Loans with (without giving effect to any amortization or prepayments on the longest weighted average life to maturity, (iv) the Term B Loans or Other Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Term 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, participation in mandatory prepayments and commitment reductions and ranking as to security (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) terms substantially similar to, or not materially less favorable to the same Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (except for covenants or other provisions applicable only to periods after the latest Revolving Facility Loans Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments) or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(vi) the weighted average life Other Revolving Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Incremental Revolving Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Revolving Facility Maturity Date with respect to the Initial Revolving Loans; provided, further that the interest rate margin ,
(which shall be deemed viii) with respect to include all upfront or similar fees or original issue discount payable to all Lenders providing such any Other Incremental Term Loan and/or Other Incremental Revolving Loanincurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in respect right of any Other Incremental security with the Term Loan and/or Other Incremental Revolving Loan B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin 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 higher of the Adjusted Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Term B Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(ix) there shall be no obligor in respect of such Other any Incremental Term Loan Commitments or Other Incremental Revolving Loan, as the case may be Facility Commitments that is not a Loan Party;
(which x) there shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other no collateral security for any Incremental Term Loan and/or Other Commitments or Incremental Revolving Loan), is no more than 1/2 of 1% higher Facility Commitments other than the Applicable Margin for each Class of 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) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Loans, respectivelyCommitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any amendment to Section 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 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’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs (b) and clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans Borrower and (iiiB) the Borrowers shall be in Pro Forma Compliance after giving effect to if such Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental 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 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer and shall not be subject to the provisions set forth in Section 2.21(b)(viii)), the Extended Term Loans shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions thereof. The conditions, taken as a whole, applicable to the existing Class of Term Loans (except for covenants and other provisions applicable only to periods after the latest Term Facility Maturity Date existing at the time of incurrence of such Extended Term Loan), or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent Agent, (ii) the final maturity date of any Extended Term Loans shall promptly notify each Lender be no earlier than the latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates (without giving effect to any amortization or prepayments on such Class of Term Loans), (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the effectiveness Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a whole, applicable to the existing Class of each Loan Modification AgreementRevolving Facility Commitments (except for covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Extended Revolving Facility Commitments) or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.be
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Incremental Commitments. (a) The Borrowers maySubject to and upon the terms and conditions set forth herein, by written notice each Incremental Lender severally agrees (i) to make available Incremental Commitments equal to the Administrative Agent commitment amount set forth next to such Incremental Lender’s name on Annex I hereto under the caption “Incremental Commitments” and (ii) to make Acquisition Facility Loans to the Borrowers and participate in Acquisition Facility Letters of Credit from time-to-time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an aggregate principal amount at any one time outstanding not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving its respective Acquisition Facility Lenders Commitment (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 shall be subject set forth on Schedule 1.0 to the approval Credit Agreement), each such agreement to be effective as of the Administrative Agent Amendment Effective Date (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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Loans”as defined below).
(b) The Borrowers and As of the Amendment Effective Date, each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver be a party 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 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 the Term B 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 and final maturity date, 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, (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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving 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 Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Credit Agreement and, to the extent required provided in this Amendment, have the rights and obligations of an Acquisition Facility Lender under the Credit Agreement and under the other Loan Documents and shall be bound by the Administrative Agentprovisions thereof.
(c) As of the Amendment Effective Date, consistent with those delivered the Acquisition Facility Commitments of each Acquisition Facility Lender shall be as set forth on the Closing Date and such additional customary documents and filings (including amendments Schedule 1.0 to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Credit Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 On the Amendment Effective Date, the extensions of credit outstanding under the Acquisition Facility, and participations therein (as applicable) shall be reallocated as contemplated by Section 4.1(b)(iv) of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of 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 Incremental 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 foregoingExisting Credit Agreement.
(e) The Borrowers may, by written notice to This Amendment shall constitute an Acquisition Facility Increase under 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Existing Credit Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement Amendment shall be deemed amended to be the extent (but only to the extent) necessary to reflect the existence Increase and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested New Lender Agreement contemplated by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02Existing Credit Agreement in respect of any such increase.
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Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established 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 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million and a minimum amount of $25.0 10.0 million or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”), ) and (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term B Loans or commitments to make term loans with pricing and 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 one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers 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 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 that
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and 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 an existing Class of the Term Loans 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 be subject to clause (viii) below),
(iii) 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,
(iv) 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 B Loans,
(v) [reserved],
(vi) [reserved],
(vii) [reserved],
(viii) with the longest weighted average life respect to maturity, (iv) the any Other Incremental Revolving Loans shall rank Term Loan that ranks pari passu in right of payment and of security with the Revolving Facility Term B 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, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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; 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 Incremental Term Loan and/or Other Incremental Revolving Loan) All-in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan Yield shall be the same as that applicable to the Term B Loans and/or on the Revolving Facility Loans; Closing Date, except that the interest rate margin All-in Yield in respect of any such Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class All-in Yield in respect of such Term B Loans and/or Revolving Facility Loans, respectively, on the Closing Date by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin in respect Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Incremental Term Loan or Other Incremental Revolving LoanLoans, as such floor shall only be included in the case may be (which 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 deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the “LIBOR floor” applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each Class of applicable to such Term B Loans then outstanding, and
(ix) the Other Term Loans may participate on a pro rata basis or Revolving Facility Loans, respectivelya 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 Borrowers’ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) no Default or Event of Section 4.01 shall be satisfied and the Administrative Agent Default shall have received a certificate to that effect dated such date occurred and executed by a Responsible Officer of the Borrowers, be continuing or would result therefrom or (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such case of an Incremental Term Loan Commitment and/or or Incremental Revolving Facility Commitments 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 the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such datecontinuing 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 Incremental Term Loans), when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree 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) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.21), make pursuant to one or more offers (each, a “Loan Modification Offer”) 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 one or more Classes of Term Loans, on the aggregate outstanding Term 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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 an offer to the Lenders under any Accepting 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, only 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’s Loans and Commitments of ”) will be established under this Agreement by implementing an Incremental Term Loan for such Affected Class as to which Lender (if such Lender’s acceptance has been madeLender 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 Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender 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 effectiveness 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 each Loan Modification Agreement. Each 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 parties hereto hereby agrees thatClass of Term Loans to which such offer relates, upon (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the same terms as an existing Class of Revolving Facility Commitments or (y) have such other terms as shall be reasonably satisfactory to the Administrative Agent, and (v) any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 only furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each L/C Issuer, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and the other Loan Documents, (i) if such Extending Lender is extending a Term Loan, such Extending Lender will be deemed to have an Incremental Term Loan having the terms of such Extended Term Loan and (ii) if such Extending Lender is extending a Revolving Facility Commitment, such Extending Lender will be deemed to have an Incremental Revolving Facility Commitment having the terms of such Extended Revolving Facility Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Term Loans and Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no Extended Term Loan or Extended Revolving Facility Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Term Loans and/or Revolving Facility Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan and/or Extended Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Loan or Commitment at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Term Loan or Extended Revolving Facility Commitment implemented thereby and (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other v) all Extended Term Loans, Other Extended Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding Facility Commitments and all obligations in respect thereof shall be Loan Obligations of the foregoing, no Permitted Amendment relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents.
(i) Each Extension shall become effective unless be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided that the Borrower shall cooperate with the Administrative AgentAgent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
(j) Notwithstanding anything to the contrary in this Agreement, including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to clause (j) through (o) of this Section 2.21), the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, “Refinancing Term Loans”), the net cash proceeds of which are used to Refinance in whole or in part any Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that: (i) before and after giving effect to the borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.01 shall be satisfied to the extent to reasonably requested required by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.relevant Incremental Assumptio
Appears in 1 contract
Sources: First Lien Credit Agreement (Caesars Acquisition Co)
Incremental Commitments. (a) The Borrowers Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed 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 and/or Incremental Revolving Facility CommitmentsLoans, as the case may be, in their own discretion; provided, that each Incremental Term Lender and/or Incremental Revolving Facility 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 million 5,000,000 and a minimum amount of $25.0 million 25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in (a) whether such Incremental Term Loan Commitments are to be Tranche B Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the case of Incremental Revolving Facility Commitments, Tranche B Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Revolving Loan Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with pricing and/or amortization terms identical to an existing Class of Term Loans or commitments to make term loans with pricing and amortization terms different from one or more existing Classes of Term Loans (“Other Incremental Term Facility Loans”).
(b) The Borrowers 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 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 CommitmentsLoans to be made thereunder; provided, that (i) the Other Incremental Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Tranche B Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall have the same terms as the Tranche B Term Loans, as applicable, (ii) the final maturity date of (a) any Other Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date and, except as to pricing, amortization and final maturity date, shall have and/or (xb) the same terms as an existing Class of Term any Other Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to no earlier than the Administrative AgentRevolving Facility Maturity Date, (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, and (iv) the Other Incremental Revolving Facility 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 require no earlier than scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (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 LoansDate; 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 Incremental Term Loan and/or Other Incremental Revolving Facility Loan) in respect of any Other Incremental Term Loan and/or Other Incremental 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 Incremental Term Loan and/or Other Incremental 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 Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.and/or
Appears in 1 contract
Incremental Commitments. (a) The Borrowers After the Closing Date has occurred, any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which which, in each case, may include any existing LenderLender (it being understood that no Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but 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 Facility Commitments, as the case may be, in their own sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank (which approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5.0 million 5,000,000 and a minimum amount of the Dollar Equivalent of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount 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 (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental 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 pricing and/or amortization terms identical to an existing Class of (and which shall together with any then outstanding Initial Euro Term Loans or Tranche B-2 Dollar Term Loans, as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-2 Dollar Term Loans, as applicable, or (y) commitments to make term loans with pricing and amortization pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Term B Loans (“Other Incremental Term Loans”).
(b) The Borrowers applicable 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 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 provided that:
(i) any (x) commitments to make additional Term B Loans shall have the same terms as the applicable Term B Loans, and shall form part of the same Class of the applicable Term B Loans and (y) Incremental Revolving Facility Commitments shall have the same terms as the then outstanding Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or 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 payment and 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 (iiand 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 andapplicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii))), (y) no Incremental Facility shall mature on or prior to the latest Revolving Facility Maturity Date and (z) except as to pricing, amortization and fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the Incremental Term Lenders in their sole discretion), such Other Incremental Term Loans shall have (x1) the same terms as an existing Class of the Term B Loans or (y2) such other terms as shall be reasonably satisfactory to the Administrative AgentAgent (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 (iiia) 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 Weighted Average Life to maturity Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining weighted average life Weighted Average Life to maturity Maturity of the then-outstanding Class of Term Loans with the longest weighted average life remaining Weighted Average Life to maturityMaturity (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), (ivII) the Other Incremental Revolving Term Loans shall rank pari passu in right an amount not to exceed 50% of payment 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 security with no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the Revolving Facility Loans, requirements of this clause (iv))),
(v) the final maturity date of with respect to any Other Incremental Revolving Loans Term Loan, the All-in Yield shall be no earlier than as agreed by the Revolving Facility Maturity Date andrespective Incremental Term Lenders and the applicable Borrower, except as to pricing, amortization and final maturity date, shall have (x) that the same terms as the Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity All-in Yield in respect 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; 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 Incremental Term Loan and/or that is Other Incremental Revolving Loan) 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 any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Initial Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or 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 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity)0.50%, or if it does so exceed such Applicable MarginAll-in Yield (such difference, such 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 so such that after giving effect to such increase, the interest rate margin in respect Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “floor” being applicable to such Other Incremental Term Loan or Other Incremental Revolving LoanLoans, as such floor shall only be included in the case may be (which calculation of the Term Yield Differential to the extent such floor is greater than the Eurocurrency Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “floor” applicable to the outstanding Initial Term Loans shall be deemed increased to include all upfront or similar fees or original issue discount payable an amount not to all Lenders providing exceed the “floor” applicable to such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than Loans prior to any increase in the Applicable Margin for each Class of 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 Incremental Revolving Facility Loans, respectivelyCommitments,
(viii) Other Incremental Term Loans and Incremental Revolving Facility Commitments shall not be secured by any asset of Parent or its Subsidiaries other than the Collateral; and
(ix) the Parent shall be in Pro Forma Compliance with the Financial Covenants (if then applicable). Each of the parties 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 amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ Parent’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on no Default or Event of Default shall exist; provided, that in the date 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 effectivenesstranche of Incremental Term Loans agree, the conditions foregoing clause (i) and clause (ix) of the preceding clause (b) shall be tested at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition (provided, that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (ii) the representations and warranties of the Borrowers set forth in paragraphs this Agreement shall be true and correct in all material respects (bother 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 (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 Borrowers, (iiiii) the Administrative Agent shall have received customary documents and 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, opinions consistent with those delivered on the Closing Date and as to such additional customary documents and filings (including amendments matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect effectiveness of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable each Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 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 Incremental Revolving Loans)Commitments, when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrowers agree Parent agrees that Section 2.16 shall apply to any conversion of Term SOFR Loans or Eurocurrency Rate Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers After the Closing Date has occurred, the Borrower may, by written notice to the Applicable Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Facility Commitments are established (except as set forth in Section 1.07) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which 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 Facility Commitments, as the case may be, in their own sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the approval of the Applicable 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 approval approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender conditioned or an Approved Funddelayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of the Dollar Equivalent of $5.0 million 5,000,000 and a minimum amount of the Dollar Equivalent of $25.0 million 10,000,000, or equal to the remaining Incremental AmountAmount or, in each case, such lesser amount approved by the Applicable Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”)effective, (iii) in the case of Incremental Revolving Facility Commitments, 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 Loans (“Other Incremental Revolving Loans”), and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) (a) commitments to make term loans with pricing and/or amortization terms identical to an existing (and which shall together with any then outstanding Initial Term B Loans form a single Class of of) Initial Term B Loans or (b) commitments to make term loans with pricing terms identical to (and amortization which shall together with any then outstanding Initial Term A Loans form a single Class of) Initial Term A Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from one or more existing Classes of the Initial Term B Loans and the Initial Term A Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.21 and any election to do so shall be in the sole discretion of such Lender.
(b) The Borrowers Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Applicable Administrative Agent an Incremental Assumption Agreement and such other documentation as the Applicable 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 that: (i) the Other Incremental any (x) commitments to make additional Initial Term B Loans shall rank pari passu or junior in right have the same terms as the Initial Term B Loans, and shall form part of payment and the same Class of security with the Initial Term B Loans, (iiy) the final maturity date of any Other Incremental commitments to make additional Initial Term A Loans shall be no earlier than the Latest Maturity Date and, except as to pricing, amortization and final maturity date, 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, (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, shall have (x) the same terms as the Initial Term A Loans, and shall form part of such Class of Initial Term A Loans and (z) Incremental Revolving Facility Loans or (y) such other Commitments shall have the same terms as shall be reasonably satisfactory to the Administrative Agent, and (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 then outstanding Class of Revolving Facility Loans; providedCommitments (or, 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 Incremental Term Loan and/or Other Incremental if more than one Class of Revolving Loan) in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan shall be the same as that applicable to the Term Loans and/or Facility Commitments is then outstanding, the Revolving Facility Loans; except that Commitments with the interest rate margin in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) may exceed the Applicable Margin for any other Class of Term Loans and/or then latest Revolving Facility Loans, respectively, by Maturity Date) and shall require no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated scheduled amortization or mandatory commitment reduction prior to the interest rates in a manner reasonably determined by Latest Maturity Date of the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1% higher than the Applicable Margin for each Class of Term Loans or Revolving Facility Loans, respectively. 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 such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 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 Borrowers, (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 Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the Borrowers 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 Borrowing of 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 Incremental 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) The Borrowers 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 in paragraph (g) below) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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). 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.
(f) The Borrowers and each Accepting Lender shall execute and deliver to the Administrative Agent a Loan Modification Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance of the Permitted Amendments and the terms and conditions thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Loan Modification Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment evidenced thereby and only with respect to the Loans and Commitments of the Accepting Lenders of the Affected Class (including any amendments necessary to treat the Loans and Commitments of the Accepting Lenders of the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested by the Administrative Agent, shall have received legal opinions, board resolutions and/or an officer’s certificate consistent with those delivered on the Restatement Effective Date under Section 4.02.,
Appears in 1 contract
Sources: Credit Agreement (Herman Miller Inc)
Incremental Commitments. (a) The Borrowers Any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount at the time of such request 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, Commitments in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such 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 Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5.0 2.5 million and a minimum amount of $25.0 10.0 million or equal to the remaining Incremental AmountAmount or such lesser amount acceptable to the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), and (iii) in the case of whether such Incremental Commitments are to be (A) Tranche A Revolving Facility Commitments, whether such Incremental (B) Tranche B Revolving Facility Commitments are to be Revolving Loan Commitments or Commitments, (C) commitments to make revolving loans (such loans, “Other Tranche A Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche A Revolving Facility Loans, but with pricing terms, final maturity date and/or amortization upfront or similar fees or other terms different from the Tranche A Revolving Facility Loans or (“Other Incremental Revolving Loans”), and (ivD) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term revolving loans (such loans, “Other Tranche B Loans”) under the Borrowing Base applicable to, and with the payment and collateral priorities of, the Tranche B Revolving Facility Loans, but with pricing terms, final maturity date and/or amortization terms identical to an existing Class of Term Loans upfront or commitments to make term loans with pricing and amortization similar fees or other terms different from one or more existing Classes of Term Loans (“Other Incremental Term the Tranche B Revolving Facility Loans”).
(b) The applicable Borrowers 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 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 that:
(i) the Other Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B 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 and final maturity date, 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, (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 Tranche A Loans shall rank pari passu in right of payment and of security with the Tranche A 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 datedate and/or upfront or similar fees, shall have (x) the same terms as the Tranche A Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, and ,
(viii) the weighted average life Other Tranche B Loans shall rank pari passu in right of payment and of security with the Tranche B Revolving Facility Loans and, except as to pricing, final maturity date and/or upfront or similar fees, shall have (x) the same terms as the Tranche B Revolving Facility Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent,
(iii) the final maturity date of any Other Incremental Revolving Tranche A Loans shall be no shorter earlier than the remaining weighted average life to maturity of any other Class of Maturity Date then in effect for the Tranche A Revolving Facility Loans; provided, further that and the interest rate margin (which final maturity date of any Other Tranche B Loans shall be deemed no earlier than the Maturity Date then in effect for the Tranche B Revolving Facility Loans,
(iv) the Other Tranche A Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to include all upfront the Tranche A Revolving Facility Loans in any voluntary or similar fees mandatory prepayment or original issue discount payable commitment reduction hereunder (except at maturity), and the Other Tranche B Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in comparison to all Lenders providing such Other Incremental Term Loan and/or Other Incremental the Tranche B Revolving LoanFacility Loans in any voluntary or mandatory prepayment or commitment reduction hereunder (except at maturity),
(v) the All-in Yield in respect of any Other Incremental Term Loan and/or Tranche A Loans may exceed the All-in Yield in respect of the Tranche A Revolving Facility Loans by no more than 0.50% or, if such Other Incremental Tranche A Loans do so exceed such All-in Yield for the Tranche A Revolving Loan shall be Facility Loans (such difference, the same as that “Tranche A Yield Differential”), then the Applicable Margin applicable to the Term Loans and/or the Tranche A Revolving Facility Loans; except Loans shall be increased such that after giving effect to such increase, the interest rate margin Tranche A Yield Differential with respect to the Other Tranche A Loans shall not exceed 0.50%,
(vi) the All-in Yield in respect of any Other Incremental Term Loan and/or Other Incremental Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Incremental Term Loan and/or Other Incremental Revolving Loan) Tranche B Loans may exceed the Applicable Margin for any other Class All-in Yield in respect of Term Loans and/or the Tranche B Revolving Facility Loans, respectively, Loans by no more than 1/2 of 10.50% or, if such Other Tranche B Loans do so exceed such All-in Yield for the Tranche B Revolving Facility Loans (it being understood that any such increase may take difference, the form of original issue discount (“OIDTranche B Yield Differential”), with OID being equated then the Applicable Margin applicable to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin Tranche B Revolving Facility Loans shall be increased so such that after giving effect to such increase, the interest rate margin Tranche B Yield Differential with respect to the Other Tranche B Loans shall not exceed 0.50%,
(vii) at any time prior to the Exit Facility Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to such increase the All-in Yield in respect of such the Tranche B Revolving Facility Loans and any Other Incremental Term Loan or Other Incremental Revolving Loan, as the case may be (which Tranche B Loans shall be deemed at least equal to include all upfront or similar fees or original issue discount payable the All-in Yield in respect of the Tranche A Revolving Facility Loans and any Other Tranche A Loans, and
(viii) at any time after the Exit Conversion Date, the Applicable Margin on the Tranche B Revolving Facility Loans and any Other Tranche B Loans will be increased, if necessary, in connection with the creation of any Other Tranche A Loans such that after giving effect to all Lenders providing such increase the All-in Yield in respect of the Tranche B Revolving Facility Loans and any Other Incremental Term Loan and/or Other Incremental Revolving Loan), is no more than 1/2 of 1Tranche B Loans shall be at least 0.75% higher than the Applicable Margin for each Class All-in Yield in respect of Term Loans or the Tranche A Revolving Facility Loans and any Other Tranche A Loans, respectively. 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 2.20 and any such collateral and other documentation shall be deemed amendment “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with and the Borrowers’ consent (not to be unreasonably withheld) Borrowers and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 2.20 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the conditions set forth in paragraphs 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 date and executed by a Responsible Officer of the BorrowersIntermediate Holdings, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as 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 DIP Closing Date or the Exit Facility Conversion Date, as applicable, 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 request to assure that the Incremental Term additional Revolving Facility Loans and/or the Other Revolving Facility Loans in respect of the Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed contemplated by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to) the then existing Term Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Commitment, (x) on or prior to the Exit Facility Commitments Conversion Date, Intermediate Holdings and its Subsidiaries shall be in compliance with Section 6.14 and (y) after the Loans to Exit Facility Conversion Date, Intermediate Holdings and its Subsidiaries shall be made thereunder and in compliance with the application of the proceeds therefrom as if made and applied Financial Performance Covenant on such datea Pro Forma Basis.
(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 additional Revolving Facility Loans in respect of Incremental Term Loans Commitments (other than Other Incremental Term Revolving Facility Loans), when originally made, are included in each Borrowing of outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Tranche A Revolving Facility Loans in respect of Incremental or Tranche B Revolving Facility Commitments (other than Other Incremental Revolving Loans), when originally madeas applicable, 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 or CDOR Rate Loans, as applicable to ABR Rate Loans or Canadian Prime Rate Loans, as applicable, as reasonably required by the Administrative Agent to effect the foregoing.
(e) The Borrowers may, by written notice Notwithstanding anything to the Administrative Agent from time contrary in Section 2.18(c) (which provisions shall not be applicable to timeclauses (e) through (i) of this Section 2.20), make pursuant to one or more offers (each, made from time to time by a “Loan Modification Offer”) Borrower to all the Lenders of one or more Classes any Class of Loans and/or Commitments, on a pro rata basis (based on the aggregate outstanding Commitments under such Class) and on the same terms (each Class subject “Pro Rata Extension Offers”), such Borrower is hereby permitted to such a Loan Modification Offer, an “Affected Class”) consummate transactions with individual Lenders from time to make one or more Permitted Amendments (as defined in paragraph (g) below) pursuant time to procedures reasonably specified by extend the Administrative Agent and reasonably acceptable to the Borrowers, as the case may be. 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 maturity date of such noticeLender’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 relevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments of such Class). Permitted Amendments shall become effective only with respect to For the Loans and Commitments avoidance of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lendersdoubt, the reference to “Accepting Lenders”) andon the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Accepting LenderClass of Revolving Facility Commitments, only that all of the Revolving Facility Commitments 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 Lender’s Loans and Commitments extension of such Affected Class as are the same. Any such extension (an “Extension”) agreed to which between such Borrower and any such Lender (an “Extending Lender’s acceptance has been made”) will be established under this Agreement by implementing an Incremental Commitment for such Lender (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”).
(f) The Borrowers applicable Borrower and each Accepting Extending Lender shall execute and deliver to the Administrative Agent a Loan Modification an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the acceptance Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the Permitted Amendments applicable Extended Revolving Facility Commitments; provided, that (i) except as to pricing, fees and final maturity (which shall be determined by such Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (A) the same terms and conditions thereof. The as an existing Class of Revolving Facility Commitments or (B) have such other terms as shall be reasonably satisfactory to the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreementand (ii) any Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments or commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon Upon the effectiveness of any Loan Modification Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Permitted Amendment 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 and only the Borrowers and furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitment.
(g) Upon the effectiveness of any such Extension, the applicable 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, such Extending Lender will be deemed to have an Incremental 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 2.20), (i) the aggregate amount of Extended Revolving Facility Commitments will not be included in the calculation of the Accepting Lenders Incremental Amount, (ii) no 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 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 Revolving Facility Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time (other than (x) notice to the Administrative Agent of such Extension and the terms of the Affected Class Extended Revolving Facility Commitment implemented thereby and (including any amendments necessary to treat y) the Loans and Commitments satisfaction of the Accepting Lenders conditions set forth in clauses (b) and (c) of Section 4.01 and the Affected Class as Other Term Loans, Other Revolving Loans and/or Other Revolving Credit Commitments). Notwithstanding the foregoing, no Permitted Amendment shall become effective unless the Administrative Agent, to the extent to reasonably requested receipt by the Administrative AgentAgent of a certificate to that effect dated as of the effective date of the Extension and executed by a Responsible Officer of Intermediate Holdings), (v) no consent of any Lender or Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments (or a portion thereof), (vi) all 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 (vii) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Facility Commitments beyond the applicable maturity date of the applicable Commitments that were extended by such Extended Revolving Facility Commitments unless it shall have received legal opinionsconsented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the corresponding Pro Rata Extension Offer; provided, board resolutions and/or an officer’s certificate consistent that the applicable Borrower shall cooperate with those delivered on the Restatement Effective Date under Section 4.02Administrative 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.
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