Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. (c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Credit Agreement (Colony NorthStar Credit Real Estate, Inc.)
Incremental Commitments. (a) The Borrowers and any Borrower may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which shall promptly deliver a copy thereof to each Lender), request the establishment of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed $20,000,000. Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 15 days after the date on which such increase notice is delivered to the Administrative Agent, and (ii) the applicable Increased Facility Closing Dateamount of the Incremental Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested equal to its Applicable Percentage thereof. Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Commitments in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; provided that immediately prior any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and after giving effect must be reasonably acceptable to the Administrative Agent and each Issuing Bank.
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase in is effective for the Revolving benefit of all the Lenders hereunder on equal terms.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties made by any Loan Party in or pursuant qualified as to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects and (B) otherwise, in all material respects) , in each case on and as of such date as if made date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier prior date). Notwithstanding the foregoing, (iiii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of the Required Lendersany Lender, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement and the Maximum Permitted Increase Amountother Loan Documents as may be necessary or appropriate, and (ii) without in the consent opinion of the Administrative Agent, to give effect to the provisions of this Section (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in including any increase described referred to in this paragraph unless it agrees to do so in its sole discretion(b) above).
(bd) Any additional bankUpon the effectiveness of an Incremental Commitment of any Incremental Lender, financial institution or other entity which(i) such Incremental Lender, with the consent of the Parent Borrower and the Administrative Agent (which consent if not already a Lender, shall not be unreasonably withheld), elects deemed to become be a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) hereunder, and henceforth shall execute a New Lender Supplement (eachbe entitled to all the rights of, a “New Lender Supplement”)and benefits accruing to, substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Lenders hereunder and shall be bound by all agreements, acknowledgements and entitled other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the benefits definition of this Agreementthe term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(ce) Upon On the date of effectiveness of any Incremental Commitments, each Increased Facility Closing DateLender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the Borrowers shall principal amount thereof (A) prepay the outstanding Revolving Loans (if any) in fulltogether with accrued interest), (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (interests in the case Loans and participations in Letters of Eurodollar Loans, with Eurodollar Base Rates equal to the Credit and Protective Advances outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), such date as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, necessary in a manner acceptable to the Administrative Agent, so order that, after giving effect theretoto all such assignments and purchases, the Revolving such Loans are held ratably by such existing Lenders and New Lenders participations in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that and Protective Advances will be held by all the Lenders (including such interests are held Incremental Lenders) ratably in accordance with their Revolving Commitments as so increasedApplicable Percentages after giving effect to the effectiveness of such Incremental Commitment. The Administrative Agent and shall notify the Lenders hereby agree that promptly of the minimum borrowingeffectiveness of any Incremental Commitments, pro rata borrowing advising the Lenders of the details thereof and pro rata payment requirements contained elsewhere in this Agreement shall not apply of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the transactions effected be made pursuant to this clause (c)paragraph.
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Incremental Commitments. (a) The Borrowers Each Incremental Lender on, and any one or more Lenders (including New Lenders) may from time to time prior subject to the Initial Revolving Termination occurrence of, the Second Amendment Effective Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering hereby severally agrees to make Loans to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be Borrower in a minimum single Borrowing in an aggregate principal amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation not to participate in any increase described in this paragraph unless it agrees to do so in exceed such Incremental Lender’s Incremental Commitments as set forth opposite its sole discretionname on Annex I attached hereto.
(b) Any additional bankThe Incremental Lenders, financial institution or other entity whichthe Lenders, with the consent of Facility Agent, the Parent Security Trustee, the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects Guarantors agree that this Second Amendment effects the provisions of Section 2.21 of the Credit Agreement as amended by this Second Amendment with respect to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Incremental Commitments and shall be bound constitute a Joinder Agreement pursuant to and in accordance with Section 2.21 of the Credit Agreement as amended by and entitled to the benefits of this AgreementSecond Amendment.
(c) Upon each Increased Facility Closing the incurrence of a Loan pursuant to this Second Amendment, such Loan shall be subject to the interest rates (including the Margin) and terms, repayment, voluntary prepayment terms and mandatory prepayment terms applicable to the Loans as set forth in the Credit Agreement.
(d) On (and subject to the occurrence of) the Second Amendment Effective Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal each Incremental Lender party hereto to the outstanding Eurodollar Base Rate extent provided in this Second Amendment and with Interest Period(sthe Credit Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable Loan Documents.
(e) ending on The Borrower and each Guarantor acknowledges and agrees that (i) the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that Borrower shall be liable for all Obligations with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry all Loans made to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected Borrower pursuant to this clause Second Amendment and (c)ii) all such Obligations (including all such Loans pursuant to this Second Amendment) shall constitute Guaranteed Obligations and shall be entitled to the benefits of the Security Documents and the Guarantees.
(f) The Incremental Commitment of each Incremental Lender shall automatically terminate upon the making of the Loans pursuant to this Second Amendment on the Second Amendment Effective Date.
(g) The proceeds of the Loans pursuant to this Second Amendment shall be used by the Borrower solely for the purposes set forth in the second recital of this Second Amendment and any amounts repaid, prepaid or cancelled may not be reborrowed.
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Incremental Commitments. (a) The Borrowers Borrower shall have the right, upon written notice to and consent of the Administrative Agent, and in coordination with the Administrative Agent as to all of the matters set forth below in this Section 1.13, but without requiring the consent of any of the Lenders, to request that one or more Lenders (including New and/or one or more other Eligible Transferees and which will become Lenders) may from time to time prior provide Incremental Commitments to the Initial Revolving Termination Date agree that Borrower, provided that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such Lenders shall makerequest by the Borrower, obtain or increase the amount of their Revolving Commitments (eachand until such time, a “if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment Increase”) by executing and delivering executed and delivered to the Administrative Agents Agent and the Borrower an Increased Facility Activation Notice specifying Incremental Commitment Agreement as provided in clause (ib) of this Section 1.13, the amount Incremental Commitment of such increase and Lender shall not be effective;
(ii) any Lender (including any Eligible Transferees who will become a Lender) may so provide an Incremental Commitment without the applicable Increased Facility Closing Date; provided that immediately prior consent of any other Lender;
(iii) the provision of Incremental Commitments pursuant to this Section 1.13 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and after giving effect to any other Eligible Transferees who will become Lenders pursuant thereto) of $5,000,000;
(iv) such increase Incremental Commitments shall not exceed $20,000,000 in the Revolving Commitments aggregate;
(iv) no Default or Event of Default shall have occurred and be continuing and (ii) each exists at the time of the representations effectiveness of an Incremental Commitment after giving effect thereto;
(vi) the up front fees payable to each Incremental Lender in respect of each Incremental Commitment shall be separately agreed to by the Borrower, the Administrative Agent and warranties made by any Loan Party in or each such Incremental Lender; and
(vii) the Loans incurred and Letters of Credit issued pursuant to an Incremental Commitment shall constitute Loans and Letters of Credit for all purposes of this Agreement and the Loan other Credit Documents and as a consequence all such Loans and Letters of Credit (and all interest, fees and other amounts payable thereon) shall be true Obligations under this Agreement and correct in all material respects (or, if such representations the other applicable Credit Documents and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true secured by the Security Documents, and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding receive the foregoing, (i) without the consent benefit of the Required LendersGuarantees, on a pari passu basis with all other Obligations secured by the aggregate amount of incremental Revolving Commitments obtained after Security Documents and receiving the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent benefit of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionGuarantees.
(b) Any additional bankAt the time of any provision of Incremental Commitments pursuant to this Section 1.13,
(i) the Borrower, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent and each such Lender or other Eligible Transferee (each an “Incremental Lender”) which consent shall not be unreasonably withheld), elects agrees to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) provide an Incremental Commitment shall execute a New Lender Supplement (each, a “New Lender Supplement”), and deliver to the Administrative Agent an Incremental Commitment Agreement substantially in the form of Exhibit HS (appropriately completed) (each an “Incremental Commitment Agreement”), whereupon with the effectiveness of such bankIncremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement;
(ii) the Borrower and each Credit Party shall have delivered such amendments, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and modifications and/or supplements to the same extent Credit Documents as if originally a party hereto and shall are necessary or in the reasonable opinion of the Administrative Agent, desirable to insure that the additional Obligations to be bound by incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Security Documents and the Guarantees;
(iii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such date pursuant to the Incremental Commitments are permitted by the terms of this the outstanding Indebtedness of the Borrower and its Subsidiaries;
(iv) if reasonably requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent covering such matters as the Administrative Agent may reasonably request.
(v) the Borrower and the other Credit Parties shall deliver to the Administrative Agent such other officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably request; and
(vi) the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement.
(c) Upon each Increased Facility Closing DateOn the effective date of any increase in the Commitments pursuant to this Section 1.13, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselvesBorrower shall, in a manner acceptable to coordination with the Administrative Agent, so that, after giving effect thereto, repay outstanding Loans of certain of the Revolving Loans are held ratably by such existing Lenders and New incur additional Loans from certain other Lenders, in each case to the extent necessary so that all of the Lenders participate in accordance with each outstanding Borrowing of Loans pro rata on the basis of their respective Revolving Commitments of such Lenders (after giving effect to such any increase in the Total Commitment Increasepursuant to this Section 1.13) and (C) with the Borrower being obligated to pay to the respective Lenders the amounts, if any, payable under costs of the type referred to in Section 2.15 as a result of 1.10 in connection with any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)repayment and/or Borrowing.
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Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase” and, collectively with DOC ID - 36220401.1 any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Initial Revolving Termination Date agree Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such Lenders shall maketime on a pro forma basis, obtain or increase at any time subsequent to the amount incurrence of their Revolving Commitments (each, a “Commitment Increase”) such Incremental Credit Facility by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent on such date. (i) for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do Indebtedness so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (credesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrowers and any Borrower may on one or more Lenders (including New Lenders) may from time to time prior occasions, by written notice to the Initial Revolving Termination Date agree Paying Agent, establish any Incremental Commitments, provided that such Lenders shall make, obtain or increase the aggregate amount of their Revolving all Incremental Commitments to be established hereunder on any date shall not exceed during the term of this Agreement the sum of (each, a “Commitment Increase”x) by executing $750,000,000 and delivering to (y) the Administrative Agents an Increased Facility Activation Notice specifying aggregate amount of Commitments terminated under Section 2.18(b). Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Commitments shall be effective, which date shall not be less than five Business Days (or such increase and shorter period as may be agreed by the Paying Agent) after the date on which such notice is delivered to the Paying Agent), (ii) the applicable Increased Facility Closing Dateamount of the Incremental Commitments requested to be established and (iii) the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Borrower proposes to be an Incremental Lender, if such Person is not then a Lender, must, if such approval would then be required under Section 9.04 for an assignment to such Person of a Commitment, be approved by the Paying Agent, each Issuing Bank and the Swingline Lender (each such approval not to be unreasonably withheld, delayed or conditioned).
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with the Revolving Commitments and Revolving Loans; provided that immediately prior the Borrower at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Paying Agent; provided that no Incremental Commitments shall become effective unless (i) at the time of effectiveness of such Incremental Commitments and after giving effect to any such increase in the Revolving Commitments thereto (iA) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiB) each of the representations and warranties made by of the Borrower set forth in Article III are true and correct in all material respects, in each case, on and as of such date, except in the case of any Loan Party such representation and warranty that expressly relates to a prior date, in or pursuant which case to the Loan Documents shall be effect that such representation and warranty is true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier prior date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) the Borrower shall have delivered to the Paying Agent (A) a certificate of a Responsible Officer of the Borrower confirming the satisfaction of the conditions set forth in clauses (i)(A) and (i)(B) above and (B) such legal opinions, board resolutions, secretary’s certificates and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered on the Effective Date under Section 4.01) by the Paying Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of the Administrative Agentany Lender, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $25,000,000 Agreement and (y) no more than five Increased Facility Closing Dates the other Loan Documents as may be selected by necessary or appropriate, in the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent reasonable opinion of the Parent Borrower Paying Agent and the Administrative Borrower, to give effect to the provisions of this Section. The Paying Agent (which agrees that its consent shall to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Incremental Facility Agreement, will not be unreasonably withheld), elects delayed or conditioned.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to become be a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) hereunder, and henceforth shall execute a New Lender Supplement (eachbe entitled to all the rights of, a “New Lender Supplement”)and benefits accruing to, substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Lenders hereunder and shall be bound by all agreements, acknowledgements and entitled other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (iii) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the benefits definition of this Agreementthe term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Incremental Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(ce) Upon On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Increased Facility Closing Date, Incremental Lender that shall have had a Revolving Commitment prior to the Borrowers effectiveness of such Incremental Commitments shall pay to the Paying Agent in same day funds an amount (so long as such amount is greater than zero) equal to the difference between (A) prepay the outstanding product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Loans Borrowings (if anyas hereinafter defined) in full, and (B) simultaneously borrow new the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Loans hereunder Borrowings, (iii) each Incremental Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Paying Agent in same day funds an amount equal to the product of (1) such prepayment Lender’s Applicable Percentage (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (calculated after giving effect to the effectiveness of such Commitment IncreaseIncremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Paying Agent receives the funds specified in clauses (ii) and (Ciii) above, the Paying Agent shall pay to each Lender the Lenders portion of such funds (so long as such portion is greater than zero) that is equal to the amountsdifference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, if anyand (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, payable under Section 2.15 as a result (v) after the effectiveness of any such prepayment. Concurrently therewithIncremental Commitments, the Lenders Borrower shall be deemed to have adjusted their participation interests made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in any outstanding Letters an aggregate amount equal to the aggregate amount of Credit so that such interests are held ratably the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Paying Agent in accordance with their Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Commitments as so increasedBorrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The Administrative deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) The Paying Agent and shall notify the Lenders hereby agree that promptly upon receipt by the minimum borrowingPaying Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments, pro rata borrowing in each case advising the Lenders of the details thereof and pro rata payment requirements contained elsewhere in this Agreement shall not apply of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the transactions effected be made pursuant to this clause (cSection 2.20(e).
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Incremental Commitments. (a) The Borrowers and any Company may, by written notice to the General Administrative Agent, request Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or 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 Lenders or Persons who will become U.S. Revolving Lenders, Multicurrency Lenders and/or Japanese Lenders (including New Lenders) which may from time include any existing Lender willing to time prior provide the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the Initial approval of the General Administrative Agent and, if assuming a U.S. Revolving Termination Date agree that such Lenders Commitment, the Issuing Lender and the Swingline Lender (which approvals shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Facility Amount), the date on which such increase Incremental Term Loan Commitments, additional U.S. Revolving Commitments, additional Multicurrency Commitments and/or additional Japanese Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the General Administrative Agent) and (iiiii) in the applicable Increased Facility Closing Date; provided 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 terms different from the Term Loans (“Other Term Loans”).
(b) The Company and each Incremental Term Lender, additional U.S. Revolving Lender, additional Multicurrency Lender and/or 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 Commitment of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder.
(c) Each of the parties hereto hereby agrees that immediately prior the Administrative Agents may take any and all actions as may be reasonably necessary to and ensure that, after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or Class pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheldSection 6.05(a), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to of such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans Class are held ratably by such existing Lenders and New the Lenders in accordance with their new Applicable Percentages of such Class. This may be accomplished at the respective 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 paragraph (b) shall be subject to Section 6.11, but shall otherwise be without premium or penalty. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 6.15 required to be made after the making of such Lenders Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(after giving effect to such d) Notwithstanding the foregoing, no Incremental Term Loan Commitment Increaseor increase in any Revolving Commitment shall become effective under this Section 6.05 unless, (i) on the date thereof, the conditions set forth in paragraphs (c) and (Cd) pay to the Lenders the amounts, if any, payable under of Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders 8.03 shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The satisfied and the General Administrative Agent shall have received a certificate to that effect dated such date and executed by the Lenders hereby agree that President, a Vice President or a Financial Officer of the minimum borrowingCompany, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement (ii) the General Administrative Agent shall not apply to have received (with sufficient copies for each of the transactions effected pursuant to this clause Lenders) legal opinions, board resolutions and certificates consistent with those delivered on the Effective Date under paragraphs (c)b) and (e) of Section 8.01.
Appears in 1 contract
Incremental Commitments. (a) Subject to the terms and conditions set forth herein, on the Commitment Increase Effective Date (as defined below), the Incremental Commitment of each Augmenting Lender shall become effective. The Borrowers and any one or more Lenders (including New Lenders) may from time Incremental Commitments shall terminate on the Maturity Date applicable to time the Commitments in effect under the Credit Agreement immediately prior to the Initial Revolving Termination Commitment Increase Effective Date agree that such Lenders shall make, obtain or increase (the amount of their Revolving Commitments (each, a “Commitment IncreaseExisting Commitments”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred terms (including in respect of fees and be continuing and (iiinterest rates) each identical those of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionExisting Commitments.
(b) Any additional bankFrom and after the Commitment Increase Effective Date, financial institution or other entity which, with the consent for all purposes of the Parent Borrower Credit Agreement, (i) the Incremental Commitments shall constitute “Commitments” under the Credit Agreement of the same class as the Existing Commitments, (ii) Loans made pursuant to the Incremental Commitments contemplated hereby shall constitute “Loans” under the Credit Agreement of same class as the Loans made pursuant to the Existing Commitments and (iii) each Augmenting Lender shall be (or in the Administrative Agent (which consent shall not be unreasonably withheld)case of any Augmenting Lender with an Existing Commitment, elects continue to become be) a “Lender” under this the Credit Agreement, and shall have all the rights and obligations of a Lender holding a Commitment under the Credit Agreement. This Agreement shall, as to each Augmenting Lender that is not already a Lender under the Credit Agreement, constitute the accession agreement referred to in connection with any transaction described in clause (iii) of the first sentence of Section 2.19(a2.10(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially of the Credit Agreement and the notice referred to in the form first and second sentences of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementSection 2.10(a).
(c) Upon each Increased Facility Closing On the Commitment Increase Effective Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal Schedule 2.01 to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender Credit Agreement will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance replaced with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Schedule 2.01 attached hereto.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Administrative Agent on up to three (3) occasions during the period from the Closing Date to the thirty-six (36) month anniversary of the Closing Date, request incremental Commitments in an amount not to exceed the aggregate amount of $100,000,000 from one or more additional Lenders (including New Lenders) which may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeinclude any existing Lender, obtain or increase the amount of their Revolving Commitments (each, a “Commitment IncreaseNew Term Loan Lender”) by executing and delivering willing to provide such incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agents Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender, an Increased Facility Activation Notice specifying Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of such increase and the incremental Commitments being requested, (ii) the applicable aggregate amount of all incremental Commitments, which when taken together with all other incremental Commitments, shall not exceed $100,000,000 in the aggregate (the “Incremental Limit”), and (iii) the date on which such incremental Commitments are requested to become effective (the “Increased Facility Closing Amount Date; provided that immediately prior ”). The Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to and after giving effect arrange a syndicate of Lenders willing to hold the requested incremental Commitments. On any Increased Amount Date on which any such increase in incremental Commitments are effective, subject to the Revolving Commitments satisfaction of the foregoing terms and conditions, (i) no Default or Event of Default each New Term Loan Lender shall have occurred and be continuing make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment and the New Term Loans made pursuant thereto. The terms and provisions of the representations New Term Loans and warranties made by any Loan Party in or pursuant the incremental Commitments shall be identical to the existing Loans.
(b) The Borrower and each New Term Loan Documents Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such New Term Loan Lender. Each such documentation shall specify the terms of the applicable incremental Commitments; provided, that from and after the effectiveness of each amendment or other documentation, the associated incremental Commitments shall thereafter be Commitments with the same terms as the Commitments (including as to pricing and maturity). Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Agreement shall be true amended to the extent (but only to the extent) necessary to reflect the existence and correct in all material respects terms of the incremental Commitments and New Term Loans evidenced thereby (orincluding adjusting the Term Percentages), if and new Notes shall be issued and the Borrower shall make such representations borrowings and warranties are qualified by materialityrepayments as shall be necessary to effect the reallocation of the Commitments, in all respects) on each case without the consent of the Lenders other than those Lenders with incremental Commitments. Any fees payable by the Borrower upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the New Term Loan Lenders and as the Borrower at the time of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date)increase. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described nothing in this paragraph unless it agrees Section 2.23 shall constitute or be deemed to do so in constitute an agreement by any Lender to increase its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementCommitments hereunder.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.23 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in Section 5.2 shall (A) prepay be satisfied and the outstanding Revolving Loans (if any) in fullAdministrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (xii) the prepayment toAdministrative Agent shall have received customary legal opinions, board resolutions and borrowing fromother customary closing certificates and documentation as required by the relevant amendment or other documentation and, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to required by the Administrative Agent, so thatconsistent with those delivered on the Closing Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, after giving effect thereto, (iii) the Revolving Loans are held ratably by such existing Lenders and New Lenders Borrower shall be in accordance pro forma compliance with the respective Revolving Commitments of such Lenders (covenants set forth in Section 7.1 after giving effect to such Commitment Increase) incremental Commitments, the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date and (Civ) pay such incremental Commitments and the Loans to be made thereunder shall be permitted by the terms and conditions of each of the 2008 Exchangeable Senior Note Indenture, the 2011 Senior Unsecured Note Indenture, the 2012 Senior Unsecured Note Indenture, the Senior Note Indenture and any Additional Senior Unsecured Indenture.
(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 New Term Loans, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. The Borrower agrees that Section 2.20 shall apply to any conversion of Eurodollar Loans to ABR Loans reasonably required by the Lenders to effect the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)foregoing.
Appears in 1 contract
Sources: Term Loan Agreement (MPT Operating Partnership, L.P.)
Incremental Commitments. The Borrower may, from time to time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (a) The Borrowers and any collectively, “Incremental Commitments”), from one or more Lenders (including New in the sole discretion of such Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeor Eligible Assignees who will become Lenders, obtain or increase the in an aggregate principal amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering up to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date$10,000,000; provided that at the time of the incurrence of such Incremental Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (iassuming the full utilization thereof), (A) no Default or Event of Default shall have occurred and be continuing and or would result therefrom, (iiB) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents Borrower shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, compliance with the financial covenants set forth in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountSection 7.12, and (iiC) without the consent Consolidated Leverage Ratio shall be less than or equal to 0.50x less than the maximum Consolidated Leverage Ratio (before and after giving effect thereto on a Pro Forma Basis) permitted pursuant to Section 7.12(a); provided, further, that each such person, if not already a Lender hereunder, shall be subject to the approval of the Administrative AgentAgent and, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by connection with any additional Revolving Commitment, the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent L/C Issuer (which consent approval shall not be unreasonably withheld, conditioned or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a. Such notice shall set forth (i) shall execute a New Lender Supplement the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and which shall be bound by in minimum increments of $1,000,000 and entitled to the benefits a minimum amount of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B$5,000,000), (xii) the prepayment todate on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be less than ten Business Days nor more than 60 calendar days after the date of such notice, and borrowing from, any existing Lender shall be effected unless otherwise agreed to by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving ). All Incremental Term Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests made in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Dollars.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower shall have the right, at any time and any one or more Lenders (including New Lenders) may from time to time prior after the Restatement Effective Date by written notice to and in consultation with the Initial Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Termination Date agree that Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders shall make, obtain or increase the amount of their Revolving respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Commitment IncreaseAdditional Lender” and, together with each Increasing Lender, the “Incremental Lenders”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately prior to and after giving effect to any such increase in Incremental Commitment, (y) the Revolving aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and (iz) the aggregate of all Incremental Commitments effected shall not exceed $150,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and (ii) each the application of the representations and warranties made by any Loan Party in or pursuant to proceeds thereof) the Loan Documents Borrower shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, compliance with the financial covenants contained in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountARTICLE VII, and (iiE) without the consent Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Incremental Commitment if it provides written notice of its election to participate within ten (10) Business Days of the Administrative Agent, (x) each increase effected pursuant to this paragraph ’s receipt of such notice. Such notice from the Borrower shall be in a minimum specify the requested amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateIncremental Commitment. No Lender shall have any obligation to participate become an Increasing Lender. Any fees paid by the Borrower for an Incremental Commitment to an Incremental Lender, the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, shall be for their own account and shall be in any increase described an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this paragraph unless it agrees Section 2.21 shall be construed to do so in its sole discretionobligate the Borrower to pay any fee for an Incremental Commitment to an Incremental Lender, the Administrative Agent or either Arranger.
(b) Any additional bankRevolving Commitment Increases, financial institution or if any, shall have the same terms (other entity which, with than upfront fees) as the consent of the Parent Borrower existing Commitments and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described effected as set forth in Section 2.19(a) shall execute a New Lender Supplement (each2.21(f). Term Loan Commitments, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate shall have terms and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner conditions acceptable to the Administrative Agent, so thatthe Incremental Lenders making such Term Loan Commitments and the Borrower (such terms and conditions to be set forth in an amendment to this Agreement effective as of the Incremental Commitment Effective Date), after giving effect theretoprovided that the Term Loans made pursuant to such Term Loan Commitments (i) shall not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Loans Loans
(c) Each Additional Lender must be approved in writing by the Administrative Agent and the Issuing Lenders. The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in Section 2.21(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.21(f).
(d) If Incremental Commitments are held ratably by such existing Lenders and New Lenders provided in accordance with this Section 2.21, the respective Revolving Commitments Borrower (in consultation with the Administrative Agent) and each Incremental Lender shall agree upon the effective date (the “Incremental Commitment Effective Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender other than an Incremental Lender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.21 to the contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no Incremental Commitment shall be effective) unless the conditions set forth in Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(i) The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality or reference to Material Adverse Effect or Material Adverse Change, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment Increase) (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (Cz) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Lenders Administrative Agent in immediately available funds an amount equal to the amountsdifference, if anypositive, payable under Section 2.15 as a result between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of any the Subsequent Borrowings and (z) such prepayment. Concurrently therewithLender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such ▇▇▇▇▇▇’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held hold the Subsequent Borrowings ratably in accordance with their Revolving respective Commitments as so increased(calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The Administrative Agent and deemed payments made pursuant to clause (i) above in respect of each SOFR Loan shall be subject to indemnification by the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply Borrower pursuant to the transactions effected pursuant to this clause (c)provisions of Section 2.19 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents Agent an Increased Facility Activation Notice specifying (i) the amount of such increase incremental Commitments and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (iA) no Default or Event of Default exists or shall exist immediately before or after giving effect to such incremental Commitments; (B) the Borrower shall be in compliance with the then-applicable financial covenants set forth in Section 7.1, computed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements shall have occurred been (or shall have been required to be) delivered pursuant to Section 6.1 (and be continuing and assuming any undrawn Commitments are fully drawn); (iiC) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on the applicable Increased Facility Closing Date immediately prior to, and after giving effect to, such incremental Commitments; (or, if such representations and warranties are qualified by materiality, in all respectsD) on and as the terms of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date the incremental Commitments shall be true identical to the terms of the then-existing Commitments (including the maturity date in respect thereof); and correct (E) in all material respects (orconnection with any such increase, if the Borrower shall provide the Administrative Agent with such representations certificates and warranties are qualified by materiality, in all respects) legal opinions as of such earlier date)the Administrative Agent may reasonably request. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Restatement Effective Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, $50,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 10,000,000 and (y) no more than five three Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing Restatement Effective Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit HE, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrowers Borrower shall (A) prepay borrow Loans under the outstanding Revolving Loans (if any) relevant increased Commitments from each Lender participating in full, (B) simultaneously borrow new Revolving Loans hereunder the relevant increase in an amount equal determined by reference to such prepayment the amount of each Type of Loan (and, in the case of Eurodollar Loans, with of each Eurodollar Base Rates equal Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to the outstanding be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate and with Interest Period(sapplicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche.
(d) ending Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on the date(s) of any then outstanding Interest Period(s))each Increased Facility Closing Date, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender this Agreement shall be effected by book entry amended to the extent that any portion (but only to the extent) necessary to reflect the existence of the amount prepaid incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicableunreasonably withheld) and the New Lenders shall make and receive payments among themselves, in a manner acceptable furnished to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)other parties hereto.
Appears in 1 contract
Sources: Credit Agreement (World Wrestling Entertainmentinc)
Incremental Commitments. (a) The Borrowers and any may, from time to time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Domestic Revolving Credit Lenders and/or Multicurrency Revolving Credit Lenders (including New Lenders) which may from time include any existing Lender willing to time prior provide the same, in their own discretion); provided that each such person, if not already a Lender hereunder, shall be subject to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount approval of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which approval shall not be unreasonably withheld and shall be given or withheld within three Business Days and, if withheld, the reason therefor shall be specified in writing promptly thereafter). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice) and (iii) 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 terms different from the Term Loans (“Other Term Loans”).
(b) Terex and each Incremental Term Lender, additional Domestic Revolving Credit Lender and/or additional Multicurrency Revolving Credit 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 Commitment of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written consent of Lenders holding at least 51% in interest of the outstanding Loans and Commitments of any Class of Term Loans, (i) if the initial yield on any Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the Adjusted LIBOR margins on the Other Term Loans plus (y) if the Other Term Loans are initially made at a discount or the lenders making the same receive a fee (other than routine amendment fees) from Terex or any of its Subsidiaries for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans or (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect for Eurocurrency Term Loans of any Class, then each Applicable Percentage for each adversely affected Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than (x) the final maturity date of any other Class of Term Loans and (y) if the initial yield (determined as provided above) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurocurrency Term Loans of any Class, the date falling six months after the final maturity date of each such adversely affected Class, and (iii) the average life to maturity of any Other Term Loans shall be no shorter than (x) the average life to maturity of any other Class of Term Loans and (y) if the initial yield (determined as provided above) on such Other Term Loans exceeds the Applicable Percentage then in effect for Eurocurrency Term Loans of any Class, six months longer than the average life to maturity of each such adversely affected Class. 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 deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments evidenced thereby and any increase to the Applicable Percentages required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with Terex’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment, additional Domestic Revolving Credit Commitments or additional Multicurrency Revolving Credit Commitments shall become effective under this Section 2.27 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 Financial Officer of Terex, and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default Administrative Agent shall have occurred and be continuing and received (ii) with sufficient copies for each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Incremental Term Lenders, the aggregate amount of incremental additional Domestic Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Credit Lenders and/or additional Multicurrency Revolving Credit Lenders) closing certificates and (ii) without the consent of documentation reasonably specified by the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Credit Agreement (Terex Corp)
Incremental Commitments. (a) The Borrowers BorrowerBorrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers BorrowerBorrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers BorrowerBorrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. (ai) The Borrowers and any one or more Lenders may by written notice to the Administrative Agent (including New whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) may request, from time to time prior to (a) the Initial extension of one or more term loan commitments or one or more increases in any existing term loan commitments (any such new or increased term loan commitment, an “Incremental Term Commitment”) and (b) the extension of one or more new Revolving Termination Date agree that such Lenders shall make, obtain Credit Commitments or increase one or more increases in the amount of their existing Revolving Credit Commitments (eachany such new or increased Revolving Credit Commitment, a an “Incremental Revolving Credit Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Credit Commitments) not to exceed $125,000,000. Each Incremental Commitment Increaseshall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrowing Agent and the Administrative Agent). Each notice delivered pursuant to this Section 3.1 shall specify (I) the date (the “Increase Effective Date”) by executing and delivering on which the Borrowers propose that the proposed Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date in which such notice is delivered to the Administrative Agents an Increased Facility Activation Notice specifying Agent (iunless otherwise consented to by the Administrative Agent in its DMEAST #35945034 v12 47 discretion), (II) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each total of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Incremental Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected requested by the Borrowers after and (III) the Closing Dateidentity of the banks, financial institutions and other entities to whom the Borrowers propose that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders but who shall be Eligible Assignees. No Any existing Lender shall have any obligation approached to participate in any increase described in this paragraph unless it agrees to do so provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion.
(b) , to provide such Incremental Commitment. Any additional bank, financial institution proposed new Lender shall enter into a joinder or other entity which, with the consent of the Parent Borrower agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with such additional Eligible Assignees becoming Lenders and any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increasean Incremental Commitment, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretocollectively, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c“Incremental Lenders”).
Appears in 1 contract
Incremental Commitments. At any time and from time to time, any Borrower may request that the Lenders or, at the option of any Borrower, other financial institutions or entities selected by a Borrower that would qualify as Eligible Assignees and are consented to by the Administrative Agent (awhich agrees not to withhold or delay such consent unreasonably) The offer to enter into commitments to make and maintain Loans to the Borrowers and any acquire participations in Letters of Credit under this Agreement. In the event that one or more of the Lenders (including New Lenders) may from time or such other financial institutions or entities offer, in their sole discretion, to time prior to the Initial Revolving Termination Date agree that enter into such commitments, and such Lenders shall make, obtain or increase financial institutions or entities and the Borrowers agree as to the amount of their Revolving Commitments such commitments and the upfront fees (eachif any) to be payable by the Borrowers in connection therewith, such Lenders or financial institutions or entities and the Borrowers shall execute and deliver a joinder agreement to this Agreement in substantially the form of Exhibit E, which joinder agreement shall (i) set forth the amount of Incremental Commitment of such Lender or financial institution or entity and the effective date of such joinder agreement (the “Commitment IncreaseJoinder Effective Date”), which shall be no earlier than the date three (3) by executing Business Days and delivering no more than five (5) Business Days after the date of delivery of the executed joinder agreement to the Administrative Agents Agent and (ii) include the information required to be included in a Borrowing Request with respect to the Loan to be made pursuant to the following paragraph, if applicable. On any Joinder Effective Date for any joinder agreement, (i) if any Loans are then outstanding, the Lenders or financial institutions or other entities party to such joinder agreement shall make a Loan to the Borrowers in a principal amount equal to its Percentage (based on, and assuming that the aggregate Commitment Amount is increased by, the Incremental Commitment set forth in such joinder agreement) of the Loans of the other Lenders then outstanding, the proceeds of which shall, notwithstanding any other provision of this Agreement to the contrary, be applied by the Borrowers and the Administrative Agent to the optional prepayment on the Joinder Effective Date of such Loans of the other Lenders then outstanding pursuant to Section 3.01(b), (ii) if there is any outstanding LC Exposure at such time, such Lender or financial institution or other entity shall automatically, and without any further action on its part, acquire from the other Lenders a participation in such LC Exposure equal to its Percentage (based on, and assuming that the aggregate Commitment Amount is increased by, the Incremental Commitment set forth in such joinder agreement) of the aggregate LC Exposure at such time, and the respective participations of the other Lenders in such LC Exposure shall be reduced accordingly to each such Lender’s Percentage (based on, and assuming that the aggregate Commitment Amount is increased by, the Incremental Commitment set forth in such joinder agreement) of the aggregate LC Exposure at such time, and (iii) subject to compliance with clauses (i) and (ii) of this paragraph, such Person shall become an Increased Facility Activation Notice specifying Incremental Lender and Lender hereunder, holding the Incremental Commitment set forth in such joinder agreement, and bound by the terms and conditions of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Commitments entered into pursuant to any such increase request shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate principal amount of incremental Revolving all Incremental Commitments obtained established after the Amendment No. 2 Closing Date pursuant to this paragraph shall not exceed $200,000,000. Except as otherwise expressly provided herein, the Maximum Permitted Increase AmountIncremental Commitments and the Loans made by Incremental Lenders shall have the same interest rate, participation and other fees, commitment reduction schedule (if any) and maturity date, and (ii) without the consent of the Administrative Agentbe subject to such conditions, (x) each increase effected pursuant as is applicable to this paragraph all other Loans and Commitments hereunder and, shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional banksubject to, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Dateof, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (collateral security provided for herein and in the case of Eurodollar Loans, other Financing Documents on an equal and ratable basis with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the each other Obligation. Any prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Section 2.01(b) shall be applied first, to the principal amount of the Loans being maintained as Base Rate Loans and second, subject to the terms of Section 4.04, to the principal amount of the Loans being maintained as LIBO Rate Loans.
Appears in 1 contract
Sources: Credit Agreement (Brookfield Infrastructure Partners L.P.)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior time, upon written notice to the Initial Revolving Termination Date agree that Agent (who shall promptly provide a copy of such Lenders shall makenotice to each Lender), obtain or propose to increase the Commitments by an aggregate amount of their not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase are no greater than Thirty Million Dollars ($30,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with the Borrower Representative. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.
(b) If the Revolving Lenders do not commit to establish the entire Incremental Revolver pursuant to subsection (a) of this Section 1.13, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), provided, however that if such Person is not an existing Lender, such Person must be acceptable to the Agent and join this Agreement as a Lender (an “Additional Lender”).
(c) In the event that the Borrower desires to increase the Commitments by the Incremental Revolver, the Borrower will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrower, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.13(c) and of the other provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.13(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement, including, without limitation, Section 9.1.
(d) The increase of the Commitments by the Incremental Revolver will be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Sections 6.2 and 6.3, (ii) each execution of the representations amendment hereto referenced in clause (c) above by Agent, the Lenders and warranties made by any Loan Additional Lenders providing the Incremental Revolver and the Credit Parties, (iii) delivery to Agent of a certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to Agent), and certifying that none of the organizational documents of such Credit Party in or pursuant delivered to the Loan Documents shall be true and correct Agent prior thereto have been modified or altered in all material respects any way (oror if modifications have occurred, if such representations and warranties are qualified by materiality, in all respects) on and as certifying new copies of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier dateorganizational documents). Notwithstanding the foregoing, (iiv) without delivery to Agent of an opinion of counsel to the consent of Credit Parties in form and substance and from counsel reasonably satisfactory to the Required LendersAgent, addressed to Agent and Lenders extending the aggregate amount of incremental Revolving Commitments obtained after Incremental Revolver and covering such matters as the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountAgent may reasonably request, and (iiv) without receipt by Agent of such new Notes and reaffirmations of guaranties, as Agent may reasonably request, together with amendments to any Mortgages reflecting that the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, Incremental Revolver is secured pari passu with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment toLoan, and borrowing from, any existing Lender shall be effected by book entry such endorsements to title policies or additional title searches as the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)may reasonably request.
Appears in 1 contract
Sources: Credit Agreement (Cryolife Inc)
Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or additional Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Revolving Credit Lenders (including New Lenders) which may from time to time prior include any existing Lender); provided that each such person shall be subject to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount approval of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of such increase the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments being requested (which (i) in the case of Incremental Term Loan Commitments, shall be in minimum principal amounts of $20,000,000 or, if lower, equal to the remaining Incremental Amount, and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the case of additional Revolving Commitments (i) no Default or Event Credit Commitments, shall be in minimum principal amounts of Default shall have occurred and be continuing and $5,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or additional Revolving Credit 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 Commitment of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the representations and warranties Incremental Term Loans to be made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (orthereunder; provided that, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the prior written consent of the Required Lenders, (i) the aggregate amount Other Term Loans shall rank pari passu or junior in right of incremental Revolving Commitments obtained after payment and of security with the Closing Date pursuant Term Loans and (except as to this paragraph pricing and amortization) shall not exceed have the Maximum Permitted Increase Amountsame terms as the Term Loans, and (ii) without the consent final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans and (iv) if the initial yield on such Other Term Loans (as determined by the Administrative Agent, Agent to be equal to the sum of (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) no more than five Increased Facility Closing Dates may be selected by if such Other Term Loans are initially made at a discount or the Borrowers after Lenders making the Closing Date. No Lender shall have same receive a fee directly or indirectly from the Borrower or any obligation to participate in any increase described in this paragraph unless it agrees to do Subsidiary for doing so in its sole discretion.
(b) Any additional bankthe amount of such discount or fee, financial institution or other entity which, with the consent expressed as a percentage of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld)Other Term Loans, elects being referred to become a herein as “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender SupplementOID”), substantially in the form amount of Exhibit H, whereupon such bank, financial institution or other entity OID divided by the lesser of (a A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “New LenderYield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall become a automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender for all purposes and as to the same extent as if originally a party effectiveness of each Incremental Assumption Agreement. Each of the parties hereto and hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be bound by and entitled deemed amended to the benefits extent (but only to the extent) necessary to reflect the existence and terms of this Agreementthe Incremental Term Loan Commitments and/or additional Revolving Credit Commitments evidenced thereby.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Credit Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (Aii) prepay the outstanding Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and/or additional Revolving Loans are secured by the Collateral ratably with the existing Term Loans and Revolving Loans and (iii) the Borrower would be in pro forma compliance with Section 6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, the Revolving Loans (if any) to be made thereunder on the date of effectiveness of such Commitment and the application of the proceeds therefrom on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in fullconsultation with the Borrower, (B) simultaneously borrow new take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans, and/or additional Revolving Loans hereunder (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an amount equal ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans 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 the interest rate thereon for such prepayment (Interest Period and the other economic consequences thereof shall be as set forth in the case of Eurodollar Loansapplicable Incremental Assumption Agreement. In addition, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoIncremental Term Loans are not Other Term Loans, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with scheduled amortization payments under Section 2.11(a)(i) required to be made after the respective Revolving Commitments making of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders Incremental Term Loans shall be deemed to have adjusted their participation interests in any outstanding Letters ratably increased by the aggregate principal amount of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (CGG Veritas)
Incremental Commitments. (a) The Borrowers Company may at any time, and any one or more Lenders (including New Lenders) may from time to time prior time, by notice to the Initial Revolving Termination Date agree that Administrative Agent, request an increase in the Aggregate Commitments provided for under this Agreement (each such Lenders shall makeincrease, obtain or increase the amount of their Revolving Commitments (each, a an “Incremental Commitment Increase”) by executing or enter into one or more tranches of term loans (each an “Incremental Term Loan”) so long as, after giving effect thereto, the aggregate amount of all such Incremental Commitment Increases and delivering to the Administrative Agents an Increased Facility Activation Notice specifying all such Incremental Term Loans, taken together, does not exceed $500,000,000; provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,300,000,000 less any amount of such increase and Incremental Term Loans effected pursuant to this Section 2.24, (ii) the applicable Increased maximum Revolving Facility Closing Date; provided Sublimit shall not at any given time be in excess of $1,500,000,000 (it being understood and agreed that immediately prior the Revolving Facility Sublimit shall be increased on a dollar-for-dollar basis concurrently with any Incremental Commitment Increase effected under and in accordance with this Section 2.24 (and shall not be increased concurrently with any Incremental Term Loan effected under and in accordance with this Section 2.24), subject at all times to and after giving effect to the foregoing $1,500,000,000 absolute limitation), (iii) any such Incremental Commitment Increase or Incremental Term Loan shall be in a minimum amount of $25,000,000 and any whole multiple of $10,000,000 in excess thereof and (iv) each Incremental Commitment Increase will be treated as a Commitment under this Agreement; provided, further, that (A) no Lender shall be required to provide all or any portion of such Incremental Commitment Increase or Incremental Term Loan and nothing contained in this Section 2.24 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase in the Revolving Commitments its Commitment hereunder, or provide Incremental Term Loans, at any time and (iB) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase or Incremental Term Loan on the Incremental Commitment Increase Effective Date or Incremental Term Loan Effective Date, as applicable. To achieve the full amount of a requested increase or incremental term loans, as applicable, the Company may also invite additional banks or other financial institutions (each an “Augmenting Lender”) to become Incremental Increase Lenders in respect of an Incremental Commitment Increase pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent (each such joinder agreement, an “Incremental Joinder Agreement”) executed by the Borrowers, each Incremental Increase Lender (including any existing Lender and any Augmenting Lender) participating in such increase and the Administrative Agent or to become Incremental Term Loan Lenders in respect of an Incremental Term Loan pursuant to an amendment or restatement in form and substance satisfactory to the Administrative Agent (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Incremental Term Loan Lender (including any existing Lender and any Augmenting Lender) participating in such tranche of incremental term loans and the Administrative Agent; provided that each Incremental Increase Lender and each Incremental Term Loan Lender (including any Augmenting Lender) shall be subject to the approval of the Administrative Agent and each Issuing Lender (such approval in each case not to be unreasonably withheld or delayed) and the approval of the Company, but not the approval of any other Lender. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Incremental Commitment Increase Effective Date”) and the final allocation of such increase, and if incremental term loans are entered into in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such incremental term loans. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date or such incremental term loans and the Incremental Term Loan Effective Date, as applicable. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the contrary set forth herein, (i) the terms of each Incremental Commitment Increase shall be identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Increase Lenders and (ii) each the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Advances, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Advances; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (2) the Applicable Rate and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Term Loan Lenders. As a condition precedent to any such increase or incremental term loans, the Company and the Dutch Borrower shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, Borrower (i) without certifying that such Incremental Commitment Increase and/or Incremental Term Loan and the consent performance of such Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Required Lenders, Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountAdministrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date and/or the Incremental Term Loan Effective Date, as applicable, before and after giving effect to such Incremental Commitment Increase and/or such Incremental Term Loans, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Company or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of any Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase and any Incremental Term Loans, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase or any Incremental Term Loans, the Administrative Agent and the Borrowers may, without the consent of any Lenders, effect such amendments (including, without limitation, an Incremental Term Loan Amendment) to this Agreement and any other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by effect the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) The At any time prior to January 7, 2011 Borrowers may, subject to the rights of the Lenders and any one or more Lenders (including New Lenders) may Agent in their sole and absolute discretion to deny such requests as set forth in this Section 1.16, from time to time prior time, upon written notice to the Initial Revolving Termination Date agree that Agent (who shall promptly provide a copy of such Lenders shall makenotice to each Lender), obtain or propose to increase the Commitments by an aggregate amount of their not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase are no greater than Thirty-Five Million Dollars ($35,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with Borrowers. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.
(b) If the Revolving Commitments Lenders do not commit to establish all or any portion of the Incremental Revolver pursuant to subsection (a) of this Section 1.16, the Agent may in its sole and absolute discretion (i) designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders) (an “Additional Lender”) or (ii) deny all or any portion of the requested Incremental Revolver amount.
(c) In the event that the Borrowers desire to increase the Commitments by the Incremental Revolver and the Lenders and Agent approve such request in their sole and absolute discretion as set forth in Section 1.16(a) and (b), the Borrowers will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrowers, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.16(c) and of the other provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.16(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement, including, without limitation, Section 9.1.
(d) The increase of the Commitments by the Incremental Revolver will be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Article VI, (ii) each execution of the representations and warranties made by any Loan Party amendment hereto referenced in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
clause (c) Upon each Increased Facility Closing Dateabove by Agent, the Borrowers shall Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (Aiii) prepay delivery to Agent of a certificate of the outstanding Revolving Loans Secretary or an Assistant Secretary of each Credit Party, in form and substance reasonably satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if any) in fullnot previously delivered to Agent), (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to and certifying that none of the organizational documents of such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal Credit Party delivered to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) Agent prior thereto have been modified or altered in any way (or if modifications have occurred, certifying new copies of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (Bsuch organizational documents), (xiv) delivery to Agent of an opinion of counsel to the Credit Parties in form and substance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Incremental Revolver and covering such matters as the Agent may reasonably request, (v) receipt by Agent of such new Notes and reaffirmations of guaranties and Liens, as Agent may reasonably request, together with amendments to any Mortgages reflecting that the Incremental Revolver is secured pari passu with the Revolving Loan, and such endorsements to title policies or additional title searches as the Agent may reasonably request and (vi) the prepayment to, and borrowing from, any existing Lender Incremental Revolver shall be effected by book entry to provided on the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender same terms and (y) conditions as the existing Lenders Revolving Loan Commitments (including existing Lenders providing a Commitment Increasewithout limitation as to fees, if applicable) absence of original issue discount, interest rates and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (cmaturity).
Appears in 1 contract
Sources: Credit Agreement (Akorn Inc)
Incremental Commitments. (a) The Borrowers Borrower may at any time after the Closing Date and any one or more Lenders (including New Lenders) may from time to time prior time, by written notice to the Initial Revolving Termination Date agree Credit Facility Agent (a “Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of any Working Capital Lender, Issuing Bank or by any other Person that such Lenders shall make, obtain is an Eligible Assignee or increase satisfies the amount rating requirement set forth in the definition of their Revolving Commitments “Issuing Bank,” as applicable (each, a “Working Capital Commitment Increase”) by executing and delivering ), up to an aggregate principal amount not to exceed the Administrative Agents an Increased Facility Activation Notice specifying (i) the maximum amount of such increase and Working Capital Debt permitted pursuant to Section 6.2(a) (iiWorking Capital Debt) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionCommon Terms Agreement.
(b) Any additional bankThe Working Capital Commitment Increase Notice shall specify (i) the date on which the Borrower proposes that such Working Capital Commitment Increase shall be effective, financial institution which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Credit Facility Agent (or, subject to clause (c)(iii)(E) below, such shorter period of time as agreed by the Incremental Lender/Issuing Banks (as defined below) participating in such Working Capital Commitment Increase), (ii) the amounts of the Working Capital Commitment Increase (including any proposed increase in Non-Fronting Limits of an Issuing Bank) and (iii) the identity of each Working Capital Lender, Issuing Bank or other entity which, with Person that is an Eligible Assignee or satisfies the consent rating requirement set forth in the definition of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “LenderIssuing Bank,” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement as applicable (each, a an “New Lender SupplementIncremental Lender/Issuing Bank”)) to whom the Borrower proposes any portion of the Working Capital Commitment Increase be allocated and the amounts of such allocations; provided that, substantially in the form of Exhibit Hany Working Capital Lender, whereupon such bank, financial institution Issuing Bank or other entity (Person approached to provide all or a “New Lender”) shall become a Lender for all purposes portion of the Working Capital Commitment Increase may elect or decline, in its sole and absolute discretion, to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementparticipate.
(c) Upon each Increased Facility Closing DateEach Working Capital Commitment Increase shall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits and/or Fronting Limits (as applicable) (or, in the case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the Borrower, the Borrowers Credit Facility Agent and each Incremental Lender/Issuing Bank (with the consent of no other Working Capital Lender or Issuing Bank being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits and/or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental Lender/Issuing Bank, (ii) amendments required to reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to this Agreement. The effectiveness of any Incremental Amendment shall be subject solely to the conditions that (A) prepay the outstanding Revolving Loans (if any) in fullno Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such date of effectiveness before or after giving effect to such Working Capital Commitment Increase, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided each Incremental Lender/Issuing Bank that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing is not already a Working Capital Lender shall be effected by book entry entitled to receipt of any required reliance letters in respect of the legal opinions provided to the extent that any portion Credit Facility Agent pursuant to Section 4.1(f) (Conditions to Closing Date and Initial Advance – Opinions from Counsel) of the amount prepaid Common Terms Agreement, (C) since the time of the financial statements most recently provided pursuant to such Lender will Section 10.1(a) (Accounting, Financial and Other Information) of the Common Terms Agreement no developments have occurred which, individually or in the aggregate have resulted in or could reasonably be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, expected to result in a manner Material Adverse Effect, (D) each Incremental Lender/Issuing Bank who is not already a Working Capital Lender or Issuing Bank is reasonably acceptable to the Administrative AgentCredit Facility Agent and each Issuing Bank and (E) the Intercreditor Agent has received, so that, after giving effect thereto, at least three (3) Business Days before the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments effectiveness of such Lenders Incremental Amendment, a certificate from the Borrower that (1) identifies each holder of Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits and/or Fronting Limits (after giving effect to such the applicable Working Capital Commitment Increase) and (C2) pay to attaches a copy of the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)proposed Incremental Amendment.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (i) one or more new commitments which may be of the Initial Revolving Termination Date agree that such Lenders shall makesame Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, obtain the “Incremental Term Commitments”) and/or (ii) one or increase more increases in the amount of their the Revolving Commitments (each, a “Revolving Commitment Increase”) by executing or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the “Incremental NAI-1539971432v8 AMERICAS 126787728 114 Revolving Credit Commitments”, and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $178,800,000 and delivering to (2) 100% of Consolidated Adjusted EBITDA for the Administrative Agents an Increased Facility Activation Notice specifying most recently completed Test Period (icalculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of such increase Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (iithe “Fixed Incremental Amount”) plus (B) an unlimited amount (the applicable Increased Facility Closing Date; provided that immediately prior to and “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such increase in Incremental Loans (assuming the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate full amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially such Indebtedness in the form of Exhibit Ha revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Incremental Revolving Credit Commitment not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), whereupon such bankthe Total Net Leverage Ratio does not exceed 4.50:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), financial institution or other entity the “Incremental Ratio Debt Basket”), plus (a “New Lender”C) shall become a Lender for all purposes any voluntary prepayments and buybacks (limited to the same extent as if originally a party hereto actual amount of cash paid) of the Initial Term Loans and shall be bound by and entitled to the benefits Incremental Term Loans, voluntary prepayments of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if anyto the extent accompanied by permanent commitment reductions thereto), voluntary prepayments and buybacks (limited to the actual amount of cash paid) in fullof any other Term Loans, (B) simultaneously borrow new Revolving Loans hereunder or other Indebtedness, in an amount equal to such prepayment each case, secured on a pari passu basis with the Initial Term Loans (in the case of Eurodollar Loansany prepayment of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) so long as the relevant prepayment was not already included in this clause (C), and payments utilizing the yank-a-bank provisions of the Credit Documents, in each case, prior to such time and other than any such voluntary prepayments (and commitment reductions) and buybacks to the extent financed with Eurodollar Base Rates the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) plus (D) in the case of any Incremental Term Commitments or Incremental Revolving Credit Commitments that effectively extend the maturity date of any Facility, an amount equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) portion of any then outstanding Interest Period(s)such Facility that will be replaced by such Incremental Term Commitments or Incremental Revolving Credit Commitments (this clause (D), as applicable the “Effective Extension Incremental Amount”) (as modified hereby); provided that with respect to subclauses the sum of (A) and ), (B), (xC) and (D) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided that, for purposes of the foregoing, (I) the prepayment toBorrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Fixed Incremental Amount, the Prepayment Amount and the Effective Extension Incremental Amount, and borrowing fromif the Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any existing Lender shall be effected by book entry to incurrence of Indebtedness under the extent Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Commitments incurred other than under the Incremental Incurrence-Based Amount shall be automatically re-designated as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount on a pro forma basis at any time subsequent to the incurrence of such Incremental Commitment (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount, the Effective Extension Incremental Amount, and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit Indebtedness so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (credesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers Borrower shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Company may at any time, and any one or more Lenders (including New Lenders) may from time to time prior time, by notice to the Initial Revolving Termination Date agree that Administrative Agent, request an increase in the Aggregate Commitments provided for under this Agreement (each such Lenders shall makeincrease, obtain or increase the amount of their Revolving Commitments (each, a an “Incremental Commitment Increase”) by executing or enter into one or more tranches of term loans (each an “Incremental Term Loan”) so long as, after giving effect thereto, the aggregate amount of all such Incremental Commitment Increases and delivering to the Administrative Agents an Increased Facility Activation Notice specifying all such Incremental Term Loans, taken together, does not exceed $500,000,000; provided, that (i) the maximum Aggregate Commitment hereunder shall not at any given time be in excess of $2,200,000,000 less any amount of such increase and Incremental Term Loans effected pursuant to this Section 2.24, (ii) the applicable Increased maximum Revolving Facility Closing Date; provided Sublimit shall not at any given time be in excess of $1,250,000,000 (it being understood and agreed that immediately prior the Revolving Facility Sublimit shall be increased on a dollar-for-dollar basis concurrently with any Incremental Commitment Increase effected under and in accordance with this Section 2.24 (and shall not be increased concurrently with any Incremental Term Loan effected under and in accordance with this Section 2.24), subject at all times to and after giving effect to the foregoing $1,250,000,000 absolute limitation), (iii) any such Incremental Commitment Increase or Incremental Term Loan shall be in a minimum amount of $25,000,000 and any whole multiple of $10,000,000 in excess thereof and (iv) each Incremental Commitment Increase will be treated as a Commitment under this Agreement; provided, further, that (A) no Lender shall be required to provide all or any portion of such Incremental Commitment Increase or Incremental Term Loan and nothing contained in this Section 2.24 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase in the Revolving Commitments its Commitment hereunder, or provide Incremental Term Loans, at any time and (iB) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase or Incremental Term Loan on the Incremental Commitment Increase Effective Date or Incremental Term Loan Effective Date, as applicable. To achieve the full amount of a requested increase or incremental term loans, as applicable, the Company may also invite additional banks or other financial institutions (each an “Augmenting Lender”) to become Incremental Increase Lenders in respect of an Incremental Commitment Increase pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent (each such joinder agreement, an “Incremental Joinder Agreement”) executed by the Borrowers, each Incremental Increase Lender (including any existing Lender and any Augmenting Lender) participating in such increase and the Administrative Agent or to become Incremental Term Loan Lenders in respect of an Incremental Term Loan pursuant to an amendment or restatement in form and substance satisfactory to the Administrative Agent (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Incremental Term Loan Lender (including any existing Lender and any Augmenting Lender) participating in such tranche of incremental term loans and the Administrative Agent; provided that each Incremental Increase Lender and each Incremental Term Loan Lender (including any Augmenting Lender) shall be subject to the approval of the Administrative Agent and each Issuing Lender (such approval in each case not to be unreasonably withheld or delayed) and the approval of the Company, but not the approval of any other Lender. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Incremental Commitment Increase Effective Date”) and the final allocation of such increase, and if incremental term loans are entered into in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Incremental Term Loan Effective Date”) and the final allocation of such incremental term loans. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date or such incremental term loans and the Incremental Term Loan Effective Date, as applicable. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the contrary set forth herein, (i) the terms of each Incremental Commitment Increase shall be identical to the Commitments made as of the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Increase Lenders and (ii) each the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Advances, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Advances; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (2) the Applicable Rate and any other pricing terms (including upfront fees) shall be determined by the Company, the Administrative Agent and the applicable Incremental Term Loan Lenders. As a condition precedent to any such increase or incremental term loans, the Company and the Dutch Borrower shall deliver to the Administrative Agent a certificate signed by a senior vice president, the chief financial officer or the treasurer of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, Borrower (i) without certifying that such Incremental Commitment Increase and/or Incremental Term Loan and the consent performance of such Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the Required Lenders, Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountAdministrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date and/or the Incremental Term Loan Effective Date, as applicable, before and after giving effect to such Incremental Commitment Increase and/or such Incremental Term Loans, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Company or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of any Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase and any Incremental Term Loans, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase or any Incremental Term Loans, the Administrative Agent and the Borrowers may, without the consent of any Lenders, effect such amendments (including, without limitation, an Incremental Term Loan Amendment) to this Agreement and any other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by effect the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) Immediately upon the effectiveness of this Amendment, the Revolving Commitments shall be increased to an aggregate principal amount of $125,000,000 and all references to the Revolving Commitments and to the maximum principal amount of the Revolving Loans in the Existing Documents shall be amended accordingly. Upon the effectiveness of this Amendment, the "Revolving Commitments", "Revolving Exposure", and "Revolving Facility", each as defined in the Credit Agreement, shall include the Incremental Commitment, and each reference to “Revolving Loans” in the Loan Documents shall be deemed to include any Incremental Facility extended under the Incremental Commitment. Schedule 2.1 to the Credit Agreement is hereby amended and restated in its entirety to reflect the updated aggregate Revolving Commitment amount, and the updated Applicable Percentages of the Lenders. In connection with the execution of this Amendment, Citizens Bank, N.A. (the “Existing Modifying Lender”) shall receive a Revolving Loan Note based on the Incremental Commitment (the “Incremental Commitment Note”), which Incremental Commitment Note shall constitute a Revolving Loan Note under the Credit Agreement and the other Loan Documents and shall supplement Existing Modifying Lender’s existing Revolving Loan Note (the “Existing Note”) and shall not be a novation. Any and all references in the Credit Agreement and the Other Loan Documents to the Note(s) and/or Revolving Loan Note(s) of such Existing Modifying Lender shall hereafter refer to both the Incremental Commitment Note and the Existing Note.
(b) The Borrowers first sentence of Section 2.11(a) of the Credit Agreement is hereby amended, restated, and any replaced in its entirety with the following: “The Borrower may, from time to time, by written notice to the Administrative Agent, request additional Revolving Commitments (collectively, “Incremental Commitments”), from one or more Lenders (including New in the sole discretion of such Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeor Eligible Assignees who will become Lenders, obtain or increase the by an aggregate principal amount of their up to Seventy-Five Million and 00/100 Dollars ($75,000,000.00), so long as, after giving effect thereto, the aggregate amount of the Revolving Commitments hereunder does not exceed Two Hundred Million and 00/100 Dollars (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date$200,000,000.00); provided that at the time of the incurrence of such Incremental Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (iassuming the full utilization thereof), (A) no Default or Event of Material Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amountwould result therefrom, and (iiB) without the consent Consolidated Total Leverage Ratio shall be less than or equal to sixty percent (60%); provided, further, that each such Person, if not already a Lender hereunder, shall be subject to the approval of the Administrative AgentAgent and, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by connection with any additional Revolving Commitment, the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent L/C Issuer (which consent approvals shall not be unreasonably withheld)conditioned, elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution withheld or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (cdelayed).”
Appears in 1 contract
Sources: Credit Agreement (Cantor Fitzgerald Income Trust, Inc.)
Incremental Commitments. (a) The Term Borrowers and any may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent, request Incremental Commitments from one or more Incremental Lenders, which may include any existing Lender; provided that (i) no Lender shall be required to provide any Incremental Commitment and (ii) each Incremental Lender shall be subject to the approval of the Administrative Agent and the Term Borrowers (which approvals shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of such increase the Incremental Commitments being requested (which shall not exceed the then-current Incremental Commitment Amount and shall be in minimum increments of $5,000,000 and a minimum amount of $20,000,000 or equal to the remaining Incremental Commitment Amount) and (ii) the applicable Increased Facility Closing Datedate on which such Incremental Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than 60 days after the date of such notice (which time periods for notice may be modified or waived at the discretion of the Administrative Agent)). All loans made pursuant to any Class of Incremental Commitments established under this Section 2.12 are referred to herein as “Other Term Loans” and will rank pari passu or junior in right of payment and security with the Initial Term Loans and will, if pari passu in right of security with the Initial Term Loans, benefit equally and ratably with the Initial Term Loans from the Liens under the Collateral Agreements. Each Class of Other Term Loans will have terms and conditions substantially identical to the Initial Term Loans (other than with respect to pricing, amortization and maturity) and otherwise will be on terms and subject to conditions reasonably satisfactory to the Administrative Agent and the Term Borrowers.
(b) The Term Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the Other Term Loans to be made thereunder; provided that, without the prior written consent of Lenders holding a majority of the principal amount of the outstanding Initial Term Loans, (i) the Other Term Loans shall mature no earlier than the Initial Term Maturity Date and will have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans and (ii) if the interest rate spread applicable to any Other Term Loans (which, for this purpose, shall be deemed to include all upfront or similar fees or original issue discount (collectively, “Upfront Payments”) and any pricing “floor” applicable to such Other Term Loans), but excluding any underwriting, arrangement, structuring or other fees payable in connection therewith that immediately are not generally shared with the Lenders, in each case, paid to the Incremental Lenders in respect of such Other Term Loans, exceeds the interest rate spread applicable to the Initial Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Initial Term Loans and any pricing “floor” applicable to the Initial Term Loans) by more than 0.50%, then the interest rate spread applicable to the Initial Term Loans (after taking into account Upfront Payments made in respect of the establishment of the Initial Term Loans and any pricing “floor” applicable to the Initial Term Loans) shall be increased so that it equals the interest rate spread applicable to the Other Term Loans (after taking into account Upfront Payments made in respect of the establishment of the Other Term Loans and any pricing “floor” applicable to the Other Term Loans) less 0.50%. For purposes of the foregoing, any original issue discount associated with the Initial Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the lesser of (A) the Weighted Average Life to Maturity of such Loans and (B) four.
(c) Each Incremental Assumption Agreement shall require the consent of only the Term Borrowers, the Administrative Agent and the Incremental Lenders providing the applicable Other Term Loans, but, in each case, not the consent of any other Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Term Loans evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 4.09, 10.06 and 10.12, the definition of “Required Lenders” and any other provisions of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Term Borrowers and the Administrative Agent shall deem necessary or advisable in connection with the establishment of such Other Term Loans; provided, however, that the foregoing provisions of this paragraph shall not override (or be construed to override) the requirements of clause (b) of Section 10.12(a)(iii), with any additional credit facilities intended to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and related Revolving Obligations to be subject to the prior consent of the Required Revolving Lenders and the Required Term Lenders in the circumstances contemplated by such clause (b). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Term Borrowers’ consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Assumption Agreement shall become effective under this Section 2.12 unless (i) on the date of such effectiveness and after giving effect to the making of any such increase Other Term Loans contemplated thereby the conditions set forth in the Revolving Commitments paragraphs (ia) no Default or Event and (b) of Default Section 5.02 shall have occurred and be continuing and satisfied, (ii) each all fees owing in respect of the representations and warranties made by any Loan Party in or pursuant such Incremental Commitments to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree and all expenses in respect of such Incremental Commitments that the minimum borrowingTerm Borrowers are required to reimburse have been paid in full and (iii) the Administrative Agent shall have received legal opinions, pro rata borrowing board resolutions and pro rata payment requirements contained elsewhere in this Agreement other closing certificates and documentation as it shall not apply reasonably request relating to such Other Term Loans, consistent with those delivered on the Effective Date pursuant to Section 5.01. The Administrative Agent shall promptly notify each Lender as to the transactions effected pursuant to this clause (c)effectiveness of each Incremental Assumption Agreement.
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Incremental Commitments. (a) The Borrowers So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request, the Borrower may request at any time and any one or more Lenders (including New Lenders) may from time to time after the Effective Date and prior to the Initial Revolving Commitment Termination Date agree Date, that such Lenders shall makethe Lender provide an Incremental Commitment and, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering subject to the Administrative Agents an Increased Facility Activation Notice specifying applicable terms and conditions contained in this Agreement, make Advances pursuant thereto; it being understood and agreed, however, that (i) the amount Lender shall not be obligated to provide an Incremental Commitment as a result of any such increase request by the Borrower, and (ii) until such time, if any, as the applicable Increased Facility Closing Date; Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered an Incremental Commitment Agreement in respect thereof as provided that immediately in Section 2.14(b), the Lender shall not be obligated to fund any Advances in excess of the Commitment as in effect prior to and after giving effect to any such increase in the Revolving Commitments (iIncremental Commitment provided pursuant to Section 2.14(b) no Default or Event of Default shall have occurred and be continuing and below, (ii) each provision of the representations and warranties made by any Loan Party in or an Incremental Commitment on a given date pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respectsSection 2.14(b) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph below shall be in a minimum amount of at least $25,000,000 and in integral multiples of $25,000,000 in excess thereof, (yiv) no more than five Increased Facility Closing Dates may the aggregate amount of all Incremental Commitments provided pursuant to Section 2.14(b) below, shall not exceed $250,000,000, and (v) all Advances made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon) shall be selected by obligations under this Agreement and the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionother applicable Loan Documents.
(b) Any additional bankAt the time of the provision of an Incremental Commitment pursuant to this Section 2.14, financial institution or other entity whichthe Borrower and the Lender shall execute and deliver an Incremental Commitment Agreement, with the consent effectiveness of such Incremental Commitment to occur on the Parent Borrower date (the "Incremental Commitment Date") set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Lender, (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14(b) shall have been satisfied, and the Administrative Agent (which consent z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall not be unreasonably withheld)have been satisfied. The Lender's Commitment under, elects to become a “Lender” under and for all purposes of, this Agreement in connection with any transaction described in Section 2.19(ashall be increased by the amount of such Incremental Commitment on the Incremental Commitment Date for such Incremental Commitment."
(f) shall execute a New Lender Supplement Exhibit E (each, a “New Lender Supplement”), substantially in Form of Mortgage) to the Credit Agreement is hereby replaced by the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementE attached hereto.
(cg) Upon each Increased Facility Closing Date, the Borrowers shall The Credit Agreement is amended by adding Exhibit L attached hereto as an exhibit thereto.
(Ah) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (Each reference in the case Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of Eurodollar Loanslike import, with Eurodollar Base Rates equal and each reference to the outstanding Eurodollar Base Rate "Credit Agreement" in any of the other Loan Documents, shall mean and with Interest Period(srefer to the Credit Agreement as amended hereby.
(i) ending on Each reference in any of the date(sLoan Documents to "Note" shall mean and refer to the Note executed and delivered by the Borrower pursuant to Section 3.01(a)(viii) of the Credit Agreement and any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect other Note executed and delivered by the Borrower hereafter pursuant to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion Section 2.14 of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably Credit Agreement as amended by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Amendatory Agreement.
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Incremental Commitments. (a) The At any time prior to January 7, 2011 Borrowers and any one or more Lenders (including New Lenders) may from time to time prior time, upon written notice to the Initial Revolving Termination Date agree that Agent (who shall promptly provide a copy of such Lenders shall makenotice to each Lender), obtain or propose to increase the Commitments by an aggregate amount of their not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase are no greater than Thirty-Five Million Dollars ($35,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with Borrowers. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.
(b) If the Revolving Lenders do not commit to establish the entire Incremental Revolver pursuant to subsection (a) of this Section 1.16, the Borrowers may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), provided, however that if such Person is not an existing Lender, such Person must be reasonably acceptable to the Agent and join this Agreement as a Lender (an “Additional Lender”).
(c) In the event that the Borrowers desire to increase the Commitments by the Incremental Revolver, the Borrowers will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide for such Incremental Revolver, which amendment shall set forth any terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrowers, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.16(c) and of the other provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.16(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement, including, without limitation, Section 9.1.
(d) The increase of the Commitments by the Incremental Revolver will be subject to the satisfaction of the following conditions precedent: (i) after giving pro forma effect to such increase, no Default or Event of Default shall have occurred and be continuing and Borrowers will be in pro forma compliance with the covenants set forth in Article VI, (ii) each execution of the representations and warranties made by any Loan Party amendment hereto referenced in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
clause (c) Upon each Increased Facility Closing Dateabove by Agent, the Borrowers shall Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (Aiii) prepay delivery to Agent of a certificate of the outstanding Revolving Loans Secretary or an Assistant Secretary of each Credit Party, in form and substance reasonably satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if any) in fullnot previously delivered to Agent), (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to and certifying that none of the organizational documents of such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal Credit Party delivered to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) Agent prior thereto have been modified or altered in any way (or if modifications have occurred, certifying new copies of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (Bsuch organizational documents), (xiv) delivery to Agent of an opinion of counsel to the Credit Parties in form and substance and from counsel reasonably satisfactory to the Agent, addressed to Agent and Lenders extending the Incremental Revolver and covering such matters as the Agent may reasonably request, (v) receipt by Agent of such new Notes and reaffirmations of guaranties and Liens, as Agent may reasonably request, together with amendments to any Mortgages reflecting that the Incremental Revolver is secured pari passu with the Revolving Loan, and such endorsements to title policies or additional title searches as the Agent may reasonably request and (vi) the prepayment to, and borrowing from, any existing Lender Incremental Revolver shall be effected by book entry to provided on the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender same terms and (y) conditions as the existing Lenders Revolving Loan Commitments (including existing Lenders providing a Commitment Increasewithout limitation as to fees, if applicable) absence of original issue discount, interest rates and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (cmaturity).
Appears in 1 contract
Sources: Credit Agreement (Akorn Inc)
Incremental Commitments. (a) The Borrowers and any Borrower may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent, establish any Incremental Commitments, provided that the aggregate amount of all Incremental Commitments to be established hereunder on any date shall not exceed during the term of this Agreement the sum of (x) $750,000,000 and (y) the aggregate amount of Commitments terminated under Section 2.18(b). Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Commitments shall be effective, which date shall not be less than five Business Days (or such increase and shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent), (ii) the applicable Increased Facility Closing Dateamount of the Incremental Commitments requested to be established and (iii) the identity of each Person proposed to become an Incremental Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (y) any Person that the Borrower proposes to be an Incremental Lender, if such Person is not then a Lender, must, if such approval would then be required under Section 9.04 for an assignment to such Person of a Commitment, be approved by the Administrative Agent, each Issuing Bank and the Swingline Lender (each such approval not to be unreasonably withheld, delayed or conditioned).
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with the Revolving Commitments and Revolving Loans; provided that immediately prior the Borrower at its election may pay upfront or closing fees with respect to Incremental Commitments without paying such fees with respect to the other Revolving Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) at the time of effectiveness of such Incremental Commitments and after giving effect to any such increase in the Revolving Commitments thereto (iA) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiB) each of the representations and warranties made by of the Borrower set forth in Article III are true and correct in all material respects, in each case, on and as of such date, except in the case of any Loan Party such representation and warranty that expressly relates to a prior date, in or pursuant which case to the Loan Documents shall be effect that such representation and warranty is true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier prior date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) the Borrower shall have delivered to the Administrative Agent (A) a certificate of a Responsible Officer of the Borrower confirming the satisfaction of the conditions set forth in clauses (i)(A) and (i)(B) above and (B) such legal opinions, board resolutions, secretary’s certificates and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered on the Effective Date under Section 4.01) by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of the Administrative Agentany Lender, (x) each increase effected pursuant effect such amendments to this paragraph shall be in a minimum amount of at least $25,000,000 Agreement and (y) no more than five Increased Facility Closing Dates the other Loan Documents as may be selected by necessary or appropriate, in the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent reasonable opinion of the Parent Borrower and the Administrative Agent (which and the Borrower, to give effect to the provisions of this Section. The Administrative Agent agrees that its consent shall to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Incremental Facility Agreement, will not be unreasonably withheld), elects delayed or conditioned.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to become be a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) hereunder, and henceforth shall execute a New Lender Supplement (eachbe entitled to all the rights of, a “New Lender Supplement”)and benefits accruing to, substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Lenders hereunder and shall be bound by all agreements, acknowledgements and entitled other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (iii) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the benefits definition of this Agreementthe term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Incremental Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(ce) Upon On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Increased Facility Closing Date, Incremental Lender that shall have had a Revolving Commitment prior to the Borrowers effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount (so long as such amount is greater than zero) equal to the difference between (A) prepay the outstanding product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Loans Borrowings (if anyas hereinafter defined) in full, and (B) simultaneously borrow new the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Loans hereunder Borrowings, (iii) each Incremental Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Administrative Agent in same day funds an amount equal to the product of (1) such prepayment Lender’s Applicable Percentage (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (calculated after giving effect to the effectiveness of such Commitment IncreaseIncremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (Ciii) above, the Administrative Agent shall pay to each Lender the Lenders portion of such funds (so long as such portion is greater than zero) that is equal to the amountsdifference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, if anyand (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, payable under Section 2.15 as a result (v) after the effectiveness of any such prepayment. Concurrently therewithIncremental Commitments, the Lenders Borrower shall be deemed to have adjusted their participation interests made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in any outstanding Letters an aggregate amount equal to the aggregate amount of Credit so that such interests are held ratably the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with their Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments) and (vii) the Borrower shall pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of such Incremental Commitments as so increased. occurs other than on the last day of the Interest Period relating thereto.
(f) The Administrative Agent and shall notify the Lenders hereby agree that promptly upon receipt by the minimum borrowingAdministrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments, pro rata borrowing in each case advising the Lenders of the details thereof and pro rata payment requirements contained elsewhere in this Agreement shall not apply of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the transactions effected be made pursuant to this clause (cSection 2.20(e).
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Weyerhaeuser Co)
Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or additional Revolving Credit Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders or persons who will become Revolving Credit Lenders (including New Lenders) which may from time to time prior include any existing Lender); provided that each such person shall be subject to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount approval of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of such increase and the Incremental Term Loan Commitments and/or additional Revolving Credit Commitments being requested (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments which (i) no Default or Event in the case of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Incremental Term Loan Party in or pursuant to the Loan Documents Commitments, shall be true and correct in all material respects (minimum principal amounts of $20,000,000 or, if such representations and warranties are qualified by materialitylower, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate equal to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase remaining Incremental Amount, and (ii) without in the consent case of the Administrative Agentadditional Revolving Credit Commitments, (x) each increase effected pursuant to this paragraph shall be in a minimum amount principal amounts of at least $25,000,000 5,000,000 or, if lower, equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Credit Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (yiii) no more than five Increased Facility Closing Dates may be selected by in the Borrowers after case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche B-2 Term Loans or commitments to make term loans with terms different from the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionTranche B-2 Term Loans (“Other Term Loans”).
(b) Any The Borrower and each Incremental Term Lender and/or additional bankRevolving Credit 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 Commitment of such Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder; provided that, financial institution or other entity which, with without the prior written consent of the Parent Borrower Majority Lenders, (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term Loans and (except as to pricing and amortization) shall have the same terms as the Term Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Tranche B-2 Term Loan Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Tranche B-2 Term Loans and (iv) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (which consent shall not be unreasonably withheld)x) the margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, elects expressed as a percentage of the Other Term Loans, being referred to become a herein as “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender SupplementOID”), substantially in the form amount of Exhibit H, whereupon such bank, financial institution or other entity OID divided by the lesser of (a A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “New LenderYield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans of any Class, then the Applicable Percentage then in effect for Term Loans of such Class shall become a automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender for all purposes and as to the same extent as if originally a party effectiveness of each Incremental Assumption Agreement. Each of the parties hereto and hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be bound by and entitled deemed amended to the benefits extent (but only to the extent) necessary to reflect the existence and terms of this Agreementthe Incremental Term Loan Commitments and/or additional Revolving Credit Commitments evidenced thereby.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Credit Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraphs (b) and (c) of Article IV shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (Aii) prepay the outstanding Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation reasonably requested by the Administrative Agent and consistent with those delivered on the Restatement Effective Date under the Amendment Agreement and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and/or additional Revolving Loans are secured by the Collateral ratably with the existing Term Loans and Revolving Loans and (iii) the Borrower would be in pro forma compliance with Section 6.02(a) and (b) after giving effect to (x) in the case of Incremental Term Loan Commitments, the Incremental Term Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, and (y) in the case of additional Revolving Credit Commitments, the Revolving Loans (if any) to be made thereunder on the date of effectiveness of such Commitment and the application of the proceeds therefrom on such date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in fullconsultation with the Borrower, (B) simultaneously borrow new take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans, and/or additional Revolving Loans hereunder (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Tranche B-2 Term Loans or Revolving Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an amount equal ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans 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 the interest rate thereon for such prepayment (Interest Period and the other economic consequences thereof shall be as set forth in the case of Eurodollar Loansapplicable Incremental Assumption Agreement. In addition, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoIncremental Term Loans are not Other Term Loans, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with scheduled amortization payments under Section 2.11(a)(i) required to be made after the respective Revolving Commitments making of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders Incremental Term Loans shall be deemed to have adjusted their participation interests in any outstanding Letters ratably increased by the aggregate principal amount of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (CGG Veritas)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) So long as no Default or Event of Default then exists or would result therefrom, the Borrower shall have occurred the right to request on one or more occasions that one or more Lenders and/or one or more other Eligible Assignees provide (A) Incremental Term Loan Commitments under a given Tranche of Incremental Term Loans as designated in the Incremental Commitment Agreement in accordance with the provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and the relevant Incremental Commitment Agreement, make Incremental Term Loans, pursuant thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that:
(i) no Lender shall be continuing and obligated to provide an Incremental Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by the Borrower;
(ii) each of the representations and warranties made by any Lender or other Eligible Assignee may provide an Incremental Term Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) Commitment without the consent of the Required Lendersany other Lender; provided, the aggregate amount that any Eligible Assignee that (x) is not a Lender, an affiliate of incremental Revolving Commitments obtained after the Closing Date pursuant a Lender or an Approved Fund shall be subject to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent (not to be unreasonably withheld) of the Administrative Agent or (y) is providing an Increased Revolving Loan Commitment shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent, the Swingline Lender and the Issuing Lenders;
(xiii) each increase effected provision of Incremental Term Loan Commitments pursuant to this paragraph Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of at least $25,000,000 and each provision of Increased Revolving Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (yfor all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.of $5,000,000;
(biv) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and after giving effect to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits establishment of this Agreement.
(c) Upon each such Incremental Term Loan Commitments or Increased Facility Closing DateRevolving Loan Commitments, the Borrowers shall Maximum Consolidated Senior Secured Leverage Condition (Acalculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) prepay the outstanding have been incurred and that Revolving Loans (if any) in fullhave been made pursuant to, (B) simultaneously borrow new Revolving Loans hereunder and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) each Incremental Commitment Agreement pursuant to which Incremental Term Loan Commitments are being provided shall specifically designate the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Term Loans or Incremental Term Loan Commitments) unless the requirements of following Section 1.11(c) are satisfied);
(vi) each Lender agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Commitment Agreement as provided in Section 1.01(c) and such Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other Credit Documents or (y) an Increased Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, the Borrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such prepayment Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the InitialTerm B Loans plus 25 basis points (unless the interest rate margins applicable to the Term Loans are increased to the extent necessary to achieve the foregoing), (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any InitialTerm B Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such InitialTerm B Loans or such Incremental Term Loans based on an assumed four-year life to maturity) and (iii) if the lowest permissible Eurodollar Rate is greater than 1.501.00% or the lowest permissible Base Rate is greater than 2.502.00% for such Incremental Term Loans, the difference between such “floor” and 1.501.00%, in the case of Eurodollar Loans, with Eurodollar Base Rates equal to or 2.502.00%, in the outstanding Eurodollar case of Base Rate Loans, shall be equated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, the terms and with Interest Period(s) ending on conditions applicable to Incremental Term Loans shall be determined by the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby)Borrower and the Lenders providing such Incremental Term Loans; provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion such terms are materially different from those of the amount prepaid InitialTerm B Loans, such terms shall be reasonably satisfactory to such Lender will be subsequently borrowed from such Lender and the Administrative Agent; and
(yxii) the existing Lenders Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request.
(including existing b) At the time of any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 1.11, (i) the Borrower, and each Lender or other Eligible Assignee which agrees to provide an Incremental Term Loan Commitment (each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Commitment Agreement (it being understood that a single Incremental Commitment Agreement shall be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a Commitment Increase, if applicableparticular request for same made by the Borrower) substantially in the form of Exhibit C (appropriately completed and the New Lenders shall make and receive payments among themselves, in a manner with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Term Loan Commitment(s) provided therein to occur on the date set forth in such Incremental Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have delivered (or shall have agreed with the Administrative Agent to deliver within a time period to be agreed after such Incremental Term Loan Commitments are established, such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent (which, unless otherwise requested by the Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the Administrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement.
(c) Notwithstanding anything to the contrary contained above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement, which designation may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Commitment Agreement shall have the same Maturity Date and the same Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of InitialTerm B Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 1.02, such Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender will participate proportionately in each then outstanding Borrowing of Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (by amount) in each Borrowing as they had before the making of the new Incremental Term Loans of such Tranche. To the extent the provisions of the preceding clause (iii) require that Lenders making new Incremental Term Loans add the same to then outstanding Borrowings of Eurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Loans and which will end on the last day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letter of Credit Outstandings and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with Loan Commitment will equal the respective Revolving Commitments RL Percentage of such Lenders additional Lender (after giving effect to such Commitment IncreaseIncreased Revolving Loan Commitments) and (Cb) pay if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the Lenders effectiveness of such Increased Revolving Loan Commitment be prepaid from the amountsproceeds of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders which prepayment shall be deemed to have adjusted their participation interests in accompanied by accrued interest on the Revolving Credit Loans being prepaid and any outstanding Letters of Credit so that such interests are held ratably costs incurred by any Lender in accordance with their Revolving Commitments as so increasedSection 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)the immediately preceding sentence.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New LendersLenders (as defined below)) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing ClosingThird Amendment Effective Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, $35,000,00050,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 5,000,000 and (y) no more than five three Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing ClosingThird Amendment Effective Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a2.18(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit HG, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrowers Borrower shall (A) prepay the outstanding borrow Revolving Loans (if any) under the relevant increased Revolving Commitments from each Lender participating in full, (B) simultaneously borrow new Revolving Loans hereunder the relevant increase in an amount equal determined by reference to such prepayment the amount of each Type of Loan (and, in the case of Eurodollar Loans, with of each Eurodollar Base Rates equal Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to the outstanding be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate and with applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s))Period, such other rate as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry agreed upon between the Borrower and the relevant Lender.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent that any portion (but only to the extent) necessary to reflect the existence of the amount prepaid increased Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicableunreasonably withheld) and the New Lenders shall make and receive payments among themselves, in a manner acceptable furnished to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)other parties hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Southern Star Central Corp)
Incremental Commitments. (a) The Borrowers Borrower shall have the right, in consultation and coordination with, Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Amendment No. 4 Effective Date and prior to the date which is three months prior to the Revolving Loan Maturity Date, that one or more Lenders (including New Lendersand/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) may from time to time prior to the Initial Revolving Termination Date agree provide Incremental Commitments, it being understood and agreed, however, that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry obligated to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a provide an Incremental Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewithrequest by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 2.14 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.14 shall not exceed the Maximum Incremental Commitment Amount.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, the Lenders Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Appendix A shall be deemed modified to have adjusted their participation interests in any outstanding Letters reflect the revised Revolving Loan Commitments of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent the affected Lenders and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply (iii) to the transactions effected extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of the Borrower, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this clause Section 2.14, the Borrower shall, in coordination with Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (cincluding the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Commitment pursuant to this Section 2.14) and with the Borrower being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.10 in connection with any such repayment and/or incurrence.
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) Borrower may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent elect to request incremental revolving credit commitments (the “Incremental Revolving Credit Commitments”) for the purpose of increasing the aggregate Revolving Credit Commitments; provided that (1) the aggregate amount of all Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $50,000,000 and (2) the aggregate amount of each increase in the Revolving Credit Commitments pursuant to this section shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent, (ii) what portion, if any, of such Incremental Revolving Credit Commitments shall be applicable to the Seasonal Adjustment Amount and (iii) what portion, if any, of such Incremental Revolving Credit Commitments shall be applicable to the Loan Cap Amount (such portions in the aggregate to add up to the aggregate amount of such increase and Incremental Revolving Credit Commitments). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (ii) any such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of the applicable related Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments that:
(iA) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitments and (ii2) each the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Revolving Credit Commitments shall constitute Obligations of the representations Borrower, shall be secured and warranties made guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and conditions as other Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall pay any Loan Party in or and all costs required pursuant to the Loan Documents Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Revolving Credit Commitment shall be true entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility, and correct any Extensions of Credit made in all material respects connection with each Incremental Revolving Credit Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit made hereunder;
(or, if such representations and warranties are qualified by materiality, in all respectsE) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date Incremental Revolving Credit Commitments shall be true effected pursuant to one or more joinder agreements (each a “Joinder Agreement”) executed and correct delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in all material respects (orform and substance reasonably satisfactory to the parties thereto and may, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement and the Maximum Permitted Increase Amountother Loan Documents as may be necessary or appropriate, and (ii) without in the consent opinion of the Administrative Agent, to effect the provisions of this Section 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of the chief financial officer or treasurer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 any Incremental Revolving Credit Commitment and (y) no more than five Increased Facility Closing Dates may the making of any Revolving Credit Loans pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be selected fully funded); and
(G) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the Borrowers after board of directors (or equivalent governing body) of each Credit Party authorizing the Closing Date. No Lender shall have borrowing of Revolving Credit Loans and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch transaction.
(b) Any additional bank, financial institution or other entity which, with the consent The New Lenders shall be included in any determination of the Parent Borrower Required Lenders and the Administrative Agent (which consent shall New Lenders will not be unreasonably withheld), elects to become constitute a “Lender” separate voting class or separate tranche of Loans for any purposes under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each On any Increased Facility Closing DateAmount Date on which any Incremental Revolving Credit Commitment becomes effective, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal subject to the outstanding Eurodollar Base Rate foregoing terms and conditions, each New Lender with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Incremental Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Commitment.
Appears in 1 contract
Incremental Commitments. (a) The So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the ABL Borrowers shall have the right, with the consent of, and in coordination with, the Administrative Agent as to all of the matters set forth below in this Section 1.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, that one or more Lenders (including New Lendersand/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) may from time to time prior provide Incremental Commitments constituting Revolving Loan Commitments and, subject to the Initial applicable terms and conditions contained in this Agreement, make Revolving Termination Date agree Loans and participate in Letters of Credit pursuant thereto, it being understood and agreed, however, that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry obligated to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a provide an Incremental Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewithrequest by the ABL Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 1.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 1.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 1.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $10,000,000 and in integral multiples of $1,000,000 in excess thereof, (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 1.15, shall not exceed the Maximum Incremental Commitment Amount and (v) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other ABL Obligations on a pari passu basis.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 1.15, each ABL Borrower, the Lenders Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be deemed no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have adjusted their participation interests been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in any outstanding Letters of Credit so this Section 1.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such interests are held ratably in accordance with their Revolving Commitments as so increasedIncremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Lenders hereby agree that the minimum borrowingTotal Revolving Loan Commitment under, pro rata borrowing and pro rata payment requirements contained elsewhere in for all purposes of, this Agreement shall not apply be increased by the aggregate amount of such Incremental Commitments; provided that the Administrative Agent shall have consented to such increase, (ii) Schedule I shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iii) to the transactions effected extent requested by any Incremental Lender, Notes will be issued, at the expense of each applicable ABL Borrower, to such Incremental Lender in conformity with the requirements of Section 1.05.
(c) At the time of any provision of Incremental Commitments pursuant to this clause Section 1.15, the ABL Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders under the relevant Tranche or Tranches, and incur additional Revolving Loans from certain other Lenders under the relevant Tranche or Tranches (cincluding the Incremental Lenders), (even though as a result thereof such new Loans (to the extent required to be maintained as Euro Rate Loans) may have a shorter Interest Period (i.e. one which begins later) than the then outstanding Borrowings of the respective such Loans), in each case to the extent necessary so that all of the Lenders under the relevant Tranche or Tranches participate in each outstanding borrowing of Revolving Loans under the relevant Tranche or Tranches pro rata on the basis of their respective Commitments under the relevant Tranche or Tranches (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 1.15) and with the relevant ABL Borrowers under the relevant Tranche being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 1.11 and such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence. All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Incremental Commitments. On and after (ax) the Delayed Draw Termination Date or (y) solely in connection with an Incremental Term Loan incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the Tenth Amendment Effective Date, the Borrower may at any time or from time to time, by notice to the Administrative Agent (The Borrowers and any Borrower may by written notice to the applicable Agent elect to request the establishment of one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain new Term Loan Commitments under a new term facility or under any existing term facility or any increase the amount under an existing tranche of their Revolving Commitments Loans (each, a an “Commitment Incremental Term Loan Request”), request one or more new commitments of Term Loans which may be of the same Class as any outstanding Term Loans (Commitment” and any Term Loan made in respect of such Incremental Term Loan Commitment, an “Incremental Term Loan Increase”) by executing or a new Class of term loans (collectively with any”) and/or any increase under the Revolving Credit Commitments (each an “Incremental Revolving Credit Commitments” and delivering together with Incremental Term Loan IncreaseCommitment, the “Incremental Term Loan Commitments”). The Administrative Agent shall promptly forward any Incremental Term Loan Request to all Lenders, and any interested Lenders shall as soon as practicable, and in any case (but excluding any Incremental Term Loan Request for the Administrative Agents or “Incremental Facilities”), in an Increased Facility Activation Notice specifying (i) aggregate amount incurred after the amount Fifteenth Amendment Effective Date not to exceed the Available Incremental Amount at the time of such increase and (ii) the applicable Increased Facility Closing Date; incurrence, provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition) within ten Business Days Revolving Credit Commitments obtained incurred after the Closing Fifteenth Amendment Effective Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion12,500,000.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Lenders (including New Incremental Term Lenders) , which may from time to time prior include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount approval of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or such increase and lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the applicable Increased Facility Closing Datedate on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”).
(b) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental PF L/C Commitments in an amount not to exceed the Incremental PF L/C Amount from one or more Incremental PF Lenders, which may include any existing Lender; provided that immediately prior each Incremental PF Lender, if not already a Lender hereunder, shall be subject to and after giving effect to any such increase in the Revolving Commitments approval of the Administrative Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) no Default the amount of the Incremental PF L/C Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or Event of Default shall have occurred and be continuing and such lesser amount equal to the remaining Incremental PF L/C Amount), (ii) the date on which such Incremental PF L/C Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice) and (iii) whether such Incremental PF L/C Commitments are to be PF L/C Commitments or commitments to make credit-linked deposits with terms different from the Credit-Linked Deposits (“Other Credit-Linked Deposits”).
(c) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the representations and warranties Incremental Term Loans or Incremental PF L/C Commitments, as applicable, to be made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (orthereunder; provided that, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the prior written consent of the Required Lenders, (i) the aggregate final maturity date of any Other Term Loans or Other PF L/C Loans shall be no earlier than the Term Loan Maturity Date and the PF Maturity Date, respectively, (ii) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans, and (iii) if the initial yield on such Other Term Loans or Other Credit-Linked Deposits (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans or the margin above the LIBO Rate used to calculate the commitment fee with respect to the Other Credit-Linked Deposits on deposit and (y) if, in the case of Other Term Loans, such Other Term Loans are initially made at a discount or, in the case of Other Term Loans and/or Other Credit-Linked Deposits, the Lenders making or depositing the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of incremental Revolving such discount or fee, expressed as a percentage of the Other Term Loans or Other Credit-Linked Deposits, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans or Other Credit-Linked Deposits and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”) the Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans and/or the depositing of the Other Credit-Linked Deposits, for all purposes of this Agreement (including for purposes of determining the PF L/C Commitment Fee from time to time). 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 deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments obtained after and the Closing Date pursuant Incremental Term Loans or Incremental PF L/C Commitments, as applicable, evidenced thereby.
(d) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b)(ii) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to this paragraph shall not exceed that effect dated such date and executed by a Financial Officer of the Maximum Permitted Increase AmountBorrower, and (ii) without except as otherwise specified in the consent applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative AgentAgent and consistent with those delivered on the Closing Date under Section 4.02.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (xother than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished 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 Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans 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 the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) each increase effected required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental PF L/C Commitment (other than an Incremental PF L/C Commitment in respect of Other Credit-Linked Deposits) pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date2.24, the Borrowers shall (A) prepay the outstanding Revolving PF L/C Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans Credit-Linked Deposits are held ratably by such existing Lenders and New the PF Lenders in accordance with their new PF Pro Rata Percentages. This may be accomplished at the respective Revolving Commitments discretion of such Lenders (after giving effect to such Commitment Increase) and (C) pay the Administrative Agent by taking any action comparable to the Lenders the amounts, if any, payable under actions described in Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)2.24(e) above.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower may, at any time on or after the Final Order Entry Date and prior to the Maturity Date, by written notice to the Administrative Agent (who shall provide a copy of such written notice to each of the Lenders), request to establish additional Commitments (each, an “Incremental Commitment”) in an aggregate amount for all such Incremental Commitments so established pursuant to this Section 2.10 not in excess of the Maximum Incremental Commitment Amount and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Required Lenders or (y) shall constitute the unused Maximum Incremental Commitment Amount at such time) (an “Incremental Commitment Request”); provided, that no more than three (3) Incremental Commitment Requests may be made during the term of the Agreement. Each such Incremental Commitment Request shall (A) specify the aggregate amount of Incremental Commitments so requested and the date on which the Borrower proposes that such Incremental Commitments shall become effective (an “Incremental Commitment Date”), which Incremental Commitment Date shall be no less than five Business Days following the date of such Incremental Commitment Request and (B) offer each Lender an equal opportunity to provide its pro rata share of such Incremental Commitments (determined based on the sum of (x) the unused Commitments of each Lender and (y) the aggregate unpaid principal amount of the Loans of each Lender, in each case, as of the date of such Incremental Commitment Request (excluding for such purposes any unused Commitments and outstanding Loans of Defaulting Lenders)); provided, that no Lender shall have any obligation to provide any Incremental Commitments and may elect or decline, in its sole discretion, to provide such Incremental Commitment; provided, further, that, in the event that one or more Lenders declines to provide its pro rata share of such Incremental Commitments, the Borrower may offer any other Lender who has elected to provide its pro rata share of such Incremental Commitments (including New Lenderseach such Lender, an “Incremental Lender”) may from time an opportunity to time provide all or any portion of such Incremental Commitments so declined.
(b) Any Lender wishing to elect to provide its pro rata share of the applicable Incremental Commitments (an “Incremental Commitment Election”) shall notify the Administrative Agent of such Incremental Commitment Election on or prior to the Initial Revolving Termination Date agree date that is three Business Days following the date of such Lenders Incremental Commitment Request.
(c) The terms and provisions of any Incremental Commitments and the related Incremental Loans thereunder shall makebe the same as the terms and provisions of all other Commitments and Loans outstanding hereunder as of the applicable Incremental Commitment Date, obtain including without limitation, the interest rate, margin, commitment fees, upfront discount, repayment premium and similar fees applicable thereto. If any Incremental Loans are not fungible for U.S. federal income tax purposes with any Loans then outstanding, such Incremental Loans shall be identified separately (whether by a separate CUSIP number or increase otherwise).
(d) Any such Incremental Commitments shall become effective as of the amount of their Revolving Commitments applicable Incremental Commitment Date; provided, that (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i1) the amount of such increase and Required Lenders (ii) the applicable Increased Facility Closing Date; provided that immediately determined prior to and after giving effect to any such increase in the Revolving Commitments Incremental Commitments) shall have provided their consent thereto, (i2) no Default or Event of Default shall have occurred and be continuing immediately prior to and immediately after giving effect to such Incremental Commitments and (ii3) each of the all representations and warranties made by any of the Loan Party Parties contained in or pursuant to this Agreement and in the other Loan Documents shall be true and correct in all material respects (or, if with the same effect as though such representations and warranties are qualified by materiality, in all respects) on and as of such date as if had been made on and as of the Incremental Commitment Date, except to the extent that such date (except that any representations and warranties which expressly relate to an earlier date or period, in which case such representations and warranties shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretiondate or respective period.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Superpriority Senior Secured Debtor in Possession Credit Agreement (Revlon Consumer Products Corp)
Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase” and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Initial Revolving Termination Date agree Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such Lenders shall maketime on a pro forma basis, obtain or increase at any time subsequent to the amount incurrence of their Revolving Commitments (each, a “Commitment Increase”) such Incremental Credit Facility by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent on such date. (i) for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do Indebtedness so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (credesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. At any time following the earlier of (ax) The Borrowers completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and any one or more Lenders (including New Lendersy) may from time to time 90 days after the Restatement Date and prior to the Initial Revolving Termination Date agree Facility Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed the greatest of (x) U.S.$100.0 million, (y) U.S.$150.0 million if on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00 and (z) from and after the date that CMM has become a “Subsidiary” and a “Loan Party” in accordance with Section 5.10(e), an unlimited amount if on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 4.00 to 1.00, or, in each case, a lesser amount in integral multiples of U.S.$5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Commitment IncreaseIncremental Term Loans”) by executing and delivering to the Administrative Agents an shall be made on such Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and be continuing and Incremental Term Loans; (ii) each of the representations and warranties made by any Loan Party contained in or pursuant to Article III and the other Loan Documents shall be true and correct in all material respects (oron and as of the Increased Amount Date, if except to the extent that such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate specifically refer to an earlier date date, in which case they shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding ; (iii) the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Borrower and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph its Subsidiaries shall be in compliance, on a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (Pro Forma Basis after giving effect to such Commitment IncreaseIncremental Commitments and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans and (Cvii) pay to if the Lenders Applicable Rate for any Incremental Term Loan exceeds the amountsthen applicable Applicable Rate for the Revolving Facility by more than 50 basis points (the excess of (A) such Applicable Rate for the Incremental Term Loans over (B) the Applicable Rate for the Revolving Facility plus 50 basis points being the relevant “Margin Differential”), if anythen each Applicable Rate for the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Margin Differential effective upon the making of the Incremental Term Loan. Each of the parties hereto hereby agrees that, payable under Section 2.15 as a result upon the effectiveness of any such prepayment. Concurrently therewithjoinder agreements in connection with any Incremental Commitments as described in the preceding sentence, the Lenders this Agreement shall be deemed amended to have adjusted their participation interests in any outstanding Letters the extent (but only to the extent) necessary to reflect the existence and terms of Credit so that such interests are held ratably in accordance with their Revolving the Incremental Commitments as so increased. The and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Borrower may revise this Agreement shall not apply to evidence such amendments without the transactions effected pursuant to this clause (c)consent of any Lender.
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Incremental Commitments. The 2021 Incremental Commitments of the 2021 Incremental Lender shall be automatically and permanently reduced to $0 upon the funding of the 2021 Incremental Loans to be made by it on the Fourth Incremental Facility Closing Date.”
(g) Section 2.07 of the Term Credit Agreement is hereby amended and restated in its entirety as follows:
(a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders Borrower shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering repay to the Administrative Agents Agent for the ratable account of the Appropriate Lenders (A) on the last Business Day of each April, July, October and January, commencing with April 30, 2021, an Increased Facility Activation Notice specifying (i) the aggregate principal amount of such increase 2020 Replacement Term Loans equal to $3,807,138.30 (which payments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Sections 2.05 and 10.07), and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respectsB) on and as the Maturity Date for any Class of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required LendersTerm Loans, the aggregate principal amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent all Term Loans of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch Class outstanding on such date.
(b) Any additional bankOther than with respect to any 2020 Incremental Loans, financial institution the amount of any such payment set forth in clause (a) above shall be adjusted to account for the addition of any Incremental Loans, Extended Term Loans or other entity which, with Refinancing Loans to contemplate (A) the consent reduction in the aggregate principal amount of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement any Term Loans that were paid down in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (eachthe incurrence of such Incremental Loans, a “New Lender Supplement”)Extended Term Loans or Refinancing Loans, substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal any increase to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry payments to the extent that and as required pursuant to the terms of any portion applicable Incremental Amendment, Extension Amendment or Refinancing Amendment.”
(h) Section 6.16 of the amount prepaid Term Credit Agreement is hereby amended by inserting the following new sentence at the end thereof: “Use the proceeds of any 2021 Incremental Loans incurred on the Fourth Incremental Facility Closing Date (i) to such Lender will be subsequently borrowed from such Lender pay the fees and expenses related to the Fourth Amendment and the incurrence of the 2021 Incremental Loans and (yii) to fund the existing Lenders 2021 Refinancing (including existing Lenders providing a Commitment Increase, if applicable) and as defined in the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (cFourth Amendment).”
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any Borrower may, from time to time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (collectively, “ Incremental Commitments ”), from one or more Lenders (including New in the sole discretion of such Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeor Eligible Assignees who will become Lenders, obtain or increase the in an aggregate principal amount of their Revolving Commitments (eachup to $ 20 , a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date000 , 000 ; provided that at the time of the incurrence of such Incremental Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (i) assuming the full utilization thereof), no Default or Event of Default shall have occurred and be continuing and (iior would result therefrom ; provided , further , that ( 1 ) each of the representations and warranties made by any Loan Party in or pursuant such person, if not already a Lender hereunder, shall be subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent approval of the Administrative AgentAgent and, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by connection with any additional Revolving Commitment, the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower L/C Issuer and the Administrative Agent Swingline Lender (which consent approvals shall not be unreasonably withheld, conditioned or delayed) and ( 2 ) the Borrower may make only 4 such requests . Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or additional Revolving Commitments being requested (which shall be in minimum increments of $ 1 , 000 , 000 and a minimum amount of $ 5 , 000 , 000 , or if the remaining Incremental Commitments are less than $ 5 , 000 , 000 , the remaining Incremental Commitment), elects (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(aeffective (which shall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent) shall execute a New Lender Supplement and (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”iii) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Loan Commitments or commitments to make term loans with terms different from the Term Loans (“ Other Term Loans ”) . All Incremental Term Loans shall be made in Dollars . (b) The Borrower and each Incremental Term Lender and/or additional Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Lender . Subject to clause (c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement . Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the 71 NAI - 1543452693v1 1543452693v6 Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph . Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld, conditioned 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) in the case of Incremental Term Loans, with Eurodollar Base Rates equal shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Loans ; (iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the outstanding Eurodollar Base Rate remaining Weighted Average Life to Maturity of then existing Term Loans ; (iv) in the case of Incremental Term Loans, subject to clauses (ii) and with Interest Period(s(iii) ending above, shall have amortization determined by the Borrower and the applicable Incremental Term Lenders ; (v) in the case of Incremental Term Loans, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders ; (vi) 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 date(sapplicable Incremental Assumption Agreement ; (vii) without the prior written consent of any Loan Party or Credit Party, if the Effective Yield on any secured Other Term Loans (as determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “ Yield Differential ”) the Effective Yield (as determined by the Administrative Agent) on any then outstanding Interest Period(s))Class of Term Loans, as applicable then the Applicable Margin for each such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans ; and (as modified hereby); provided that with respect viii) all material terms of any additional Revolving Commitments and Revolving Loans under such additional Revolving Commitments shall be identical to subclauses the existing Revolving Commitments and Revolving Loans . (Ad) No Incremental Term Loan Commitments or additional Revolving Commitments shall become effective under this Section 2 . 11 unless, on the date of such effectiveness, (i) the conditions set forth in paragraphs (a) and (B), b) of Section 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 Financial Officer of the Borrower ; (xii) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing Total Consolidated Net Leverage Ratio on a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (Pro Forma Basis after giving effect to such Commitment Increase) Incremental Term Loans or Revolving Commitments, as applicable, shall be at least 0 . 25 x less than the maximum Consolidated Net Leverage Ratio permitted for such period under Section 7.12; and (Ciii) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause have received (c).with sufficient copies for each of 72 NAI - 1543452693v1 1543452693v6
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Incremental Commitments. (a) The Borrowers and Borrower may at any one time or more Lenders (including New Lenders) may from time to time prior after the Effective Date, by notice to the Initial Revolving Termination Date agree that such Lenders shall makeAdministrative Agent, obtain request one or increase more increases in the amount of their Revolving the Commitments (eacheach such increase, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying ), provided that (i) both at the amount time of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in request and upon the Revolving Commitments effectiveness of any Incremental Amendment referred to below, (ix) no Default or Event of Default shall have occurred and be continuing exist and (iiy) each of the all representations and warranties made by in this Agreement or any other Loan Party in or pursuant to the Loan Documents Document shall be true and correct in all material respects and (orii) the aggregate amount of all Commitment Increases pursuant to this Section 2.20, when added to the initial aggregate amount of the Lenders’ Commitments on the Effective Date, shall not exceed $1,000,000,000. Each Commitment Increase shall be in an aggregate principal amount that is not less than $20,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, if such representations and warranties are qualified by materialityany, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (oreach Additional Lender, if such representations any, and warranties are qualified by materialitythe Administrative Agent. The Incremental Amendment may, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement as may be necessary or appropriate, in the Maximum Permitted Increase Amount, and (ii) without the consent reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to effect the provisions of this paragraph Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that all references to “the occasion of any Borrowing” or “issuance, amendment, renewal or extension of a minimum amount Letter of at least $25,000,000 Credit” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and (y) no more than five Increased Facility Closing Dates may be selected such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases for any purpose not prohibited by the Borrowers after the Closing Datethis Agreement. No Lender shall have be obligated to provide any obligation to participate in any increase described in this paragraph Commitment Increases, unless it agrees so agrees. Upon each increase in the Commitments pursuant to do so in its sole discretion.
this Section 2.20, (ba) Any additional bank, financial institution or other entity which, with the consent each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement Commitment Increase (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Commitment Increase Lender”) shall become in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans such Lender’s participations hereunder in an amount equal to outstanding Letters of Credit and Swingline Loans such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Commitment represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans are held ratably being prepaid and any costs incurred by such existing Lenders and New Lenders any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause the immediately preceding sentence.
(c)b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Borrower may, by written notice to the Administrative Agent from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments when: (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (iw) no Default exists or Event of Default shall have occurred and be continuing and would result after giving pro forma effect to such Incremental Term Borrowing, (iix) each of the all representations and warranties made by any Loan Party set forth in or pursuant to the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, such Incremental Term Borrowing, (ory) an updated Library Value Report has been delivered to the Administrative Agent at the time of such Incremental Term Borrowing and (z) at the time of, if or after giving effect to such Incremental Term Borrowing (and any Investments made with such funds), the Borrower is in pro forma compliance with the financial covenants set forth in Article V (including the Term Borrowing Base); request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term Loan Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld, conditioned or delayed) to the Administrative Agent. Such notice shall set forth: (A) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Term Loan Amount), (B) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (C) whether such Incremental Term Loan Commitments are commitments to make Term Loans with identical terms to any existing Tranche of Term Loans or commitments to make term loans with terms different from any existing Tranche of Term Loans outstanding.
(b) The Borrower may, by written notice to the Administrative Agent from time to time when: (w) no Default exists or would result after giving pro forma effect to such Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, (x) all representations and warranties are qualified by materiality, set forth in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date the Loan Documents shall be true and correct in all material respects immediately at the time of, and after giving effect to, Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, (ory) an updated Revolving Borrowing Base Certificate has been delivered to the Administrative Agent at the time of such Additional Revolving Loan Commitments becoming effective and upon any making of any Additional Revolving Loans and (z) at the time of, or after giving effect to such Additional Revolving Loan Commitments and any making of the related Additional Revolving Loans, the Borrower is in pro forma compliance with the financial covenants set forth in Article V; request Additional Revolving Loan Commitments in an amount not to exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not unreasonably withheld, conditioned or delayed) to the Administrative Agent and each Issuing Bank. Such notice shall set forth (A) the amount of the Additional Revolving Loan Commitments being requested (which shall be in minimum increments of $250,000 and a minimum amount of $2,500,000 or such lesser amount equal to the remaining Additional Revolving Loan Commitment Amount) and (B) the date on which such Additional Revolving Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). The Borrower and each Person providing an Additional Revolving Loan Commitment shall execute and deliver to the Administrative Agent an Additional Revolving Loan Commitment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Additional Revolving Loan Commitment of each such Person. The terms and provisions of such Additional Revolving Loan Commitments and Additional Revolving Loans made under such Additional Revolving Credit Commitments, shall be identical to those of the then-existing Revolving Loan Commitments and Revolving Loans, respectively. The final maturity date of the Additional Revolving Loans made under the Additional Revolving Loan Commitments shall be no earlier than the Revolving Termination Date and no scheduled mandatory commitment reduction other than those applicable to the existing Revolving Loans and Revolving Loan Commitments shall be required prior to the Revolving Termination Date.
(c) The Borrower and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence each Tranche of Incremental Term Loan Commitments of each Incremental Term Loan Lender. The terms of any Tranche of Incremental Term Loan Commitments (including the Effective Yield applicable to such Tranche) may differ from any existing Tranche of Term Loans outstanding in respect of interest rate, amortization and maturity, provided that, such Tranche of Incremental Term Loans shall have (i) an Initial Incremental Term Loan Maturity Date of no earlier than the then latest maturing Tranche of outstanding Term Loans, (ii) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then-outstanding Term Loans with the then longest Weighted Average Life to Maturity, (iii) the Incremental Term Loans shall not be secured by assets other than Collateral and not guaranteed by persons other than Guarantors and (iv) each Incremental Term Borrowing shall be secured on a no more senior than pari passu basis on the Collateral securing the Obligations; provided further, that if the Effective Yield for such representations and warranties are qualified Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any Tranche of then outstanding Term Loans by materialitymore than 0.25% per annum, in the Applicable Margins for all respects) then outstanding Term Loans shall be increased as of such earlier date)date in accordance with the requirements of the definition of “Applicable Margin”. Notwithstanding anything to the foregoing, (i) without the consent of the Required Lenderscontrary contained above in this Section 2.20, the aggregate amount of incremental Revolving Incremental Term Loan Commitments obtained after provided pursuant to each Incremental Term Loan Commitment Assumption Agreement shall constitute a new Tranche, which shall be separate and distinct from the Closing Date existing Tranches pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountAgreement (with a designation which may be made in letters (i.e., and A, B, C, etc.), numbers (ii1, 2, 3, etc.) without or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, C-1, C-2, etc.); provided that, with the consent of the Administrative Agent, the parties to a given Incremental Term Loan Assumption Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(xi) the Incremental Term Loans to be made pursuant to such Incremental Term Loan Assumption Agreement shall have the same Scheduled Maturity Date and the same Applicable Margins of Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same amortization schedule as then remains with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each scheduled repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining scheduled principal payment of the respective Tranche proportionately; and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.10, such new Incremental Term Loans shall be added to (and form part of) each increase effected pursuant Borrowing of outstanding Term Loans of the respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans or Revolving Loans of the respective Tranche (after giving effect to this paragraph shall be in the incurrence of such new Incremental Term Loans) on a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionpro rata basis.
(biv) Any additional bankTo the extent the provisions of preceding clause (iii) require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the then-outstanding Borrowings of Eurodollar Rate Loans of such Tranche, financial institution or other entity whichit is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., with an Interest Period that began during an Interest Period then applicable to outstanding Eurodollar Rate Loans of such Tranche and which will end on the consent last day of such Interest Period). In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then-outstanding Borrowings of Term Loans of such Tranche which are maintained as Eurodollar Rate Loans, the Lenders that have made such Incremental Term Loans shall be entitled to receive from the Borrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the Parent Borrower respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement and each Additional Revolving Loan Commitment Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment 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 Commitment and the Incremental Term Loans evidenced thereby or the Additional Revolving Loan Commitments and Additional Revolving Loans evidenced thereby, and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under and the Borrower may revise this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in and the form of Exhibit H, whereupon other Loan Documents to evidence such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementamendments.
(ce) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Loan Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) conditions set forth in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (ASection 3.3(a) and (B)b) shall be satisfied, (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement or Additional Revolving Credit Commitment Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates requested by the Administrative Agent, (iii) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Security Documents as security for the Obligations, as determined by the Administrative Agent (x) the prepayment toapplicable Loan Party to any Security Documents shall have entered into, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable delivered to the Administrative Agent, so thatat the direction of the Administrative Agent a modification or new Security Document in proper form for filing or recording in the relevant jurisdiction and in a form satisfactory to the Administrative Agent, after giving effect thereto(y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Secured Parties an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of the Security Documents as security for the Obligations has not changed and confirming or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Security Documents and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to the Administrative Agent or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of the Security Documents as security for the Obligations.
(f) Upon the effectiveness of each Additional Revolving Loan Commitment, the Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans are held ratably by such existing of certain of the Revolving Lenders, and incur additional Revolving Loans from certain other Revolving Lenders and New (including the additional Revolving Lenders), in each case to the extent necessary so that all of the Revolving Lenders participate in accordance with each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments of such Lenders (after giving effect to such Commitment Increase) any increase in the aggregate Revolving Loan Commitments pursuant to this Section 2.20 and (C) with the Borrower being obligated to pay to the respective Revolving Lenders any costs of the type referred to in Section 2.17 in connection with any such repayment or Borrowing (and in any event including any amounts, if anyas reasonably determined by the respective Lenders, payable under Section 2.15 as a result of to compensate them for funding any such prepaymentRevolving Loans during an existing Interest Period (rather than at the beginning at the respective Interest Period based on rates then applicable thereto)). Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in All determinations by any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply Lender pursuant to the transactions effected pursuant to this clause (c)immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Cinedigm Corp.)
Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (i) one or more new commitments which may be of the Initial Revolving Termination Date agree that such Lenders shall makesame Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, obtain the “Incremental Term Commitments”) and/or (ii) one or increase more increases in the amount of their the Revolving Commitments (each, a “Revolving Commitment Increase”) by executing or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the “Incremental Revolving Credit Commitments”, and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $178,800,000 and delivering to (2) 100% of Consolidated Adjusted EBITDA for the Administrative Agents an Increased Facility Activation Notice specifying most recently completed Test Period (icalculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of such increase Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (iithe “Fixed Incremental Amount”) plus (B) an unlimited amount (the applicable Increased Facility Closing Date; provided that immediately prior to and “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such increase in Incremental Loans (assuming the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate full amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially such Indebtedness in the form of Exhibit H, whereupon a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such bank, financial institution Incremental Term Loans or other entity (a “New Lender”) shall become a Lender Incremental Revolving Credit Commitment not promptly applied for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Datespecified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), Total Net Leverage Ratio does not exceed 4.50:1.00 as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) last day of the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).most recently completed Test
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrowers Borrower shall have the right, at any time and any one or more Lenders (including New Lenders) may from time to time prior after the Restatement Effective Date by written notice to and in consultation with the Initial Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Termination Date agree that Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders shall make, obtain or increase the amount of their Revolving respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Commitment IncreaseAdditional Lender” and, together with each Increasing Lender, the “Incremental Lenders”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately prior to and after giving effect to any such increase in Incremental Commitment, (y) the Revolving aggregate Commitments plus Incremental Commitments shall not exceed $400,000,000 and (iz) the aggregate of all Incremental Commitments effected shall not exceed $150,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and (ii) each the application of the representations and warranties made by any Loan Party in or pursuant to proceeds thereof) the Loan Documents Borrower shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, compliance with the financial covenants contained in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountARTICLE VII, and (iiE) without the consent Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Incremental Commitment if it provides written notice of its election to participate within ten (10) Business Days of the Administrative Agent, (x) each increase effected pursuant to this paragraph ’s receipt of such notice. Such notice from the Borrower shall be in a minimum specify the requested amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateIncremental Commitment. No Lender shall have any obligation to participate become an Increasing Lender. Any fees paid by the Borrower for an Incremental Commitment to an Incremental Lender, the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, 12581222v10 24740.00017 shall be for their own account and shall be in any increase described an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this paragraph unless it agrees Section 2.21 shall be construed to do so in its sole discretionobligate the Borrower to pay any fee for an Incremental Commitment to an Incremental Lender, the Administrative Agent or either Arranger.
(b) Any additional bankRevolving Commitment Increases, financial institution or if any, shall have the same terms (other entity which, with than upfront fees) as the consent of the Parent Borrower existing Commitments and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described effected as set forth in Section 2.19(a) shall execute a New Lender Supplement (each2.21(f). Term Loan Commitments, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate shall have terms and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner conditions acceptable to the Administrative Agent, so thatthe Incremental Lenders making such Term Loan Commitments and the Borrower (such terms and conditions to be set forth in an amendment to this Agreement effective as of the Incremental Commitment Effective Date), after giving effect theretoprovided that the Term Loans made pursuant to such Term Loan Commitments (i) shall not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Loans Loans
(c) Each Additional Lender must be approved in writing by the Administrative Agent and the Issuing Lenders. The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in Section 2.21(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.21(f).
(d) If Incremental Commitments are held ratably by such existing Lenders and New Lenders provided in accordance with this Section 2.21, the respective Revolving Commitments Borrower (in consultation with the Administrative Agent) and each Incremental Lender shall agree upon the effective date (the “Incremental Commitment Effective Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender other than an Incremental Lender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.21 to the contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no Incremental Commitment shall be effective) unless the conditions set forth in Section 2.21(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(i) The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.21(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.21(c); 12581222v10 24740.00017
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality or reference to Material Adverse Effect or Material Adverse Change, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment Increase) (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (Cz) pay no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Lenders Administrative Agent and the amountsLenders, if anytogether with such other documents, payable under Section 2.15 instruments and certificates as a result the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of any such prepayment. Concurrently therewiththe Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Lenders Borrower shall be deemed to have adjusted their participation interests made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in any outstanding Letters an aggregate principal amount equal to the aggregate principal amount of Credit so that such interests are held ratably the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with their Revolving Commitments as so increased. The Section 2.2(b), (iii) each Lender shall pay to the Administrative Agent and in immediately available funds an amount equal to the Lenders hereby agree that the minimum borrowingdifference, if positive, between (y) such Lender’s pro rata borrowing percentage (calculated after giving effect to the Incremental Commitment) of the Subsequent Borrowings and (z) such Lender’s pro rata payment requirements contained elsewhere in this Agreement shall not apply percentage (calculated without giving effect to the transactions effected pursuant to this Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (c).iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage 12581222v10 24740.00017
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and At any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Term B Maturity Date, the Borrower may solicit, through the Administrative Agent, from the Lenders shall make, obtain or increase increases in the Commitments of up to an aggregate amount of their Revolving Commitments (each$150,000,000; provided, -------- however, that the Borrower may not request or receive such increase at any ------- time that a “Commitment Increase”) by executing Default or an Event of Default has occurred and delivering is continuing; and provided, further that each such increase shall be in an amount of at ----------------- least $25,000,000; and provided, further that no such increase shall be ----------------- permitted without the prior written consent of the Administrative Agent. With such solicitation, the Borrower shall deliver to the Administrative Agents an Increased Facility Activation Notice specifying Agent and the Lenders revised pro forma financial projections for the period from the date of such solicitation through the Termination Date which shall be in form and substance reasonably satisfactory to the Administrative Agent and shall demonstrate the Borrower's ability timely to repay the Loans, assuming the Commitments as increased pursuant to this Section 2.7 are fully drawn, and to comply with the financial covenants ----------- contained in Section 8. No Lender shall be obligated to increase its share --------- of a Commitment, and no Lender shall be removed as a Lender for failure to agree to such increase.
(ib) If any Lender desires to participate in such increase in a Commitment (a "Consenting Lender"), such Lender shall notify the ----------------- Administrative Agent of the amount by which it desires to increase its share of such Commitment. The Commitments shall be increased by the aggregate amount that the Consenting Lenders are willing to increase and (ii) their respective Commitments hereunder, but in no event shall the applicable Increased Facility Closing Date; provided that immediately prior Commitments be increased pursuant to and after giving effect this Section 2.7 by more than $150,000,000. The ----------- Loans made pursuant to any such increase in the Commitments shall be Revolving Commitments Credit Loans or Term A Loans (i) no Default or Event as requested by the Borrower), shall be deemed to be Loans for all purposes of Default this Agreement and the Security Documents and shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant subject to the Loan Documents terms and conditions of this Agreement, except as may be otherwise agreed upon among the Borrower and the Majority Lenders; provided, however, that such Loans shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such not have a -------- ------- maturity date as if made on and as of such date (except that any representations and warranties which expressly relate prior to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) Termination Date without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent all of the Administrative Agent, (x) each Lenders. The aggregate increase effected pursuant to this paragraph in the Commitments shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected shared by the Borrowers after Consenting Lenders in such ratio as the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially determine. The increase in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and Commitments shall be bound by implemented pursuant to documentation consistent herewith and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) otherwise in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate form and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable substance reasonably satisfactory to the Administrative Agent, so that, after giving effect theretothe Issuing Lender, the Revolving Loans are held ratably by such existing Majority Lenders and New Lenders the Borrower. The Borrower shall deliver to each Consenting Lender a new Note or Notes (or loan accounts or records shall be maintained pursuant to Section 2.8) reflecting the increase in accordance with the respective Revolving Commitments its ----------- share of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result Commitment. The Specified Percentages of any such prepayment. Concurrently therewith, all of the Lenders shall be adjusted to reflect such increase in the Commitments, and Schedule 1.1 shall be deemed modified to have adjusted their participation interests in any outstanding Letters of Credit so that reflect such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply adjustment to the transactions effected pursuant Specified Percentages of the Lenders. Any fees payable in connection with such increase in the Commitment shall be payable only to this clause (c)the Administrative Agent, with respect to fees payable to the Administrative Agent, and to the Consenting Lenders, in their capacity as Consenting Lenders.
Appears in 1 contract
Sources: Credit Agreement (Radio One Inc)
Incremental Commitments. (a) The Borrowers Company shall have the right, without requiring the consent of any of the Lenders, to request at any time and any one or more Lenders (including New Lenders) may from time to time prior to after the Initial Revolving Termination Effective Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) so long as no Default or Event of Default shall have has occurred and is continuing, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) reasonably satisfactory to the Administrative Agent and the Company (with such consent, in any such case, not to be continuing unreasonably withheld) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Committed Rate Loans pursuant thereto; it being understood and agreed, however, that (i) until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this subsection 2.19, such Lender shall not be obligated to fund any Committed Rate Loans in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this subsection 2.19, (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects Lender (or, if such representations and warranties are qualified by materiality, in all respectsincluding any Eligible Transferee who will become a Lender) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to may so provide an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) Incremental Commitment without the consent of the Required Lendersany other Lender, the aggregate amount (iii) each provision of incremental Revolving Incremental Commitments obtained after the Closing Date on a given date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph subsection 2.19 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $25,000,000 10,000,000; provided, that such amount may be less than $10,000,000 if such amount represents all remaining availability under the following clause (iv), (iv) the aggregate amount of all Incremental Commitments provided pursuant to this subsection 2.19 shall not exceed $1,500,000,000 (v) all Committed Rate Loans made pursuant to an Incremental Commitment (and all interest, fees and other amounts payable thereon) shall be obligations under this Agreement and (yvi) no more than five Increased Facility Closing Dates may be selected all actions taken by the Borrowers after Company pursuant to this subsection 2.19 shall be done in coordination with the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionAdministrative Agent.
(b) Any additional bank, financial institution or other entity which, with At the consent time of the Parent Borrower and provision of Incremental Commitments pursuant to this subsection 2.19, the Company, the Administrative Agent (and each such Lender or other Eligible Transferee which consent shall not be unreasonably withheld), elects agrees to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement provide an Incremental Commitment (each, a an “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Incremental Lender”) shall become a Lender for all purposes execute and deliver to the same extent Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees), (x) all Incremental Commitment Requirements are satisfied and (y) all other conditions set forth in this subsection 2.19 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as if originally a party hereto to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Incremental Lender shall be bound by and entitled to the benefits of this AgreementAgreement with respect to its Incremental Commitment, (ii) the Aggregate Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (iii) Schedule I and the “Commitment Percentage” of each Lender shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) to the extent requested by any Incremental Lender, promissory notes will be issued, at the Company’s expense, to such Incremental Lender in conformity with the requirements of subsection 2.11(d).
(c) Upon each Increased Facility Closing DateAt the time of any provision of Incremental Commitments pursuant to this subsection 2.19 (or at any later time as may be specified by the Administrative Agent), the Borrowers shall Company shall, in coordination with the Administrative Agent, repay outstanding Committed Rate Loans of certain of the Lenders, and incur additional Committed Rate Loans from certain other Lenders (A) prepay including the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment Tranche (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to ) or borrowing (in the outstanding Eurodollar case of Alternate Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)Loans), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)the case may be, (x) of Committed Rate Loans pro rata on the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion basis of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a their respective Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders Percentages (after giving effect to such Commitment Increaseany increase in the Aggregate Commitments pursuant to this subsection 2.19) and (C) with the Company being obligated to pay to the respective Lenders any costs of the amounts, if any, payable under Section 2.15 as a result of type referred to in subsection 2.16 in connection with any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)repayment.
Appears in 1 contract
Sources: Credit Agreement (Wyeth)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may may, by written notice to the Administrative Agent from time to time prior to after the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date, add one or more Incremental Commitments in respect of one or more Classes of Loans; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be is continuing and or would exist immediately after giving effect to such Incremental Commitment (ii) each the Secured Leverage Ratio as of the last day of the most recently ended period of four fiscal quarters of the Borrowers for which financial statements are internally available shall not exceed, after giving effect to such Incremental Facility, 2.50 to 1.00 and (iii) all representations and warranties made by any Loan Party contained herein and in or pursuant to the other Loan Documents shall be true and correct in all material respects (oror in all respects if otherwise qualified by “material” or “material adverse effect”) immediately prior to and after giving effect to such Incremental Commitment, if except to the extent such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate specifically refer to an earlier date date, in which case they shall be true and correct in all material respects (or, or in all respects if such representations and warranties are otherwise qualified by materiality, in all respects“material” or “material adverse effect”) as of such earlier date). Notwithstanding the foregoing, Any such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000 or, in each case, such lesser amount as permitted by the Administrative Agent), (ii) the date on which such Incremental Commitments or Loans are requested to become effective which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (any such date, an “Incremental Effective Date”) and (iii) the interest rate, amortization, maturity and other terms being requested with respect thereto (which shall comply with clause (b) below). The Borrowers shall first invite any Lender, any Affiliate of any Lender and/or any Approved Fund to provide the requested Incremental Commitment. Each such existing Lender, any Affiliate of any Lender and/or any Approved Fund shall elect or decline to provide such Incremental Commitment within five Business Days of receipt of such notice; provided that any Lender, any Affiliate of any Lender and/or any Approved Fund that does not reply within such five Business Day period shall be deemed to have declined to provide Incremental Commitments. Any portion of the Incremental Commitments not provided by any existing Lender, Affiliate of any Lender and/or Approved Fund may then be offered to any other Person that would be an Eligible Assignee (subject to any approvals or consents required pursuant to Section 10.06 below). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment.
(b) Subject to Section 2.19(c) below, the terms and conditions of any Incremental Commitments and Loans to be made thereunder shall be determined by the applicable Incremental Lenders and the Borrowers and shall be as set forth in the applicable Incremental Facility Agreement; provided that (i) the Weighted Average Life to Maturity of such Loans shall be no shorter than the Weighted Average Life to Maturity of the Closing Date Loans, and the Maturity Date applicable to such Loans shall be no earlier than, the Latest Maturity Date in effect at the time of incurrence of such Loans, (ii) the Effective Yield applicable to any Incremental Commitments shall not be higher than the Effective Yield on the Closing Date Loans, unless the Effective Yield with respect to the Closing Date Loans is increased by an amount equal to or greater than the difference between the Effective Yield with respect to the Incremental Commitments and the corresponding Effective Yield on such Closing Date Loans, (iii) mandatory prepayments in respect of any Indebtedness incurred under any Incremental Commitment shall be shared on a pro rata or less than pro rata (but not greater than pro rata basis) with the Loans and (iv) any other terms set forth in the applicable Incremental Facility Agreement that are not consistent with this Agreement shall be (A) no more favorable (taken as a whole) to the Incremental Lenders than the terms of the existing Commitments hereunder and (B) reasonably acceptable to the Administrative Agent.
(c) Any Incremental Commitment shall be effected by an Incremental Facility Agreement; provided that (i) the terms included in any such Incremental Facility Agreement shall be determined by the Borrowers and the Incremental Lenders and which shall be consistent with this Section 2.19 and (ii) the Borrowers shall have delivered to the Administrative Agent such legal opinions, Board Resolutions, secretary’s certificates, officer’s certificates and other customary documents as shall reasonably be requested by the Administrative Agent in connection therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Agreement. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section 2.19.
(d) Incremental Commitments shall become Commitments under this Agreement pursuant to an Incremental Facility Agreement which may amend this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Commitment, if any, each Incremental Lender, if any, and the Administrative Agent. The Borrowers will use the proceeds of the Loans made pursuant to the Incremental Commitments for any purpose not prohibited by this Agreement.
(e) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans 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 Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(f) This Section 2.19 shall supersede any provisions in Section 2.16 or 10.01 to the contrary. For the avoidance of doubt, any provisions of this Section 2.19 may be amended with the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant provided no such amendment shall require any Lender to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) provide any Incremental Commitment without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch Lender’s consent.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Term Loan and Guaranty Agreement (Par Pacific Holdings, Inc.)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Borrower may, from time to time prior after the Closing Date, by written notice to the Initial Administrative Agent request the establishment of (i) one or more new term loan commitments (the “New Term Loan Commitments”), (ii) one or more additional tranches of revolving credit commitments (the “Additional Revolving Termination Date agree that such Lenders shall make, obtain Credit Commitments”) and/or (iii) one or increase more increases in the amount of their the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the FirstEighth Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, a an “Commitment IncreaseIncreased Amount Date”) by executing and delivering on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agents Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an Increased Facility Activation Notice specifying eligible assignee pursuant to Section 13.6(b) (iany such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the amount extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such increase and (ii) the applicable Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i1) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party set forth herein and in or pursuant to the Loan Documents other Credit Documentation shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date Increased Amount Date as if made on and as of such date (except that any where such representations and warranties which expressly relate to an earlier date date, in which case such representations and warranties shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans and shall be secured only by the Collateral securing the Obligations; (3) noneither the Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless suchthe Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Parent GuarantorsGuarantor, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate Class of Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, (i) without the prior written consent of the Required Lenders, (i) the aggregate Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of incremental Revolving such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments obtained after of any Class are effective, subject to the Closing Date pursuant satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to this paragraph shall not exceed the Maximum Permitted Increase AmountBorrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-existing Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent, (x) each increase effected pursuant including, for the avoidance of doubt any “MFN” protection applicable to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch Additional Revolving Credit Commitments.
(be) Any additional bank, financial institution or other entity whichEach of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not to be unreasonably withheld), elects take any and all action as may be reasonably necessary to become ensure that all New Term Loans that, pursuant to the applicable Incremental Amendment, are to be of the same Class of an Existing Class of Term Loans, when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan is made, or by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (i) to the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such New Term Loans shall be ratably increased by the aggregate principal amount of such New Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Revolving Credit Commitment Increase Lender”) shall become in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding such Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans Credit Lender’s participations hereunder in an amount equal to outstanding Letters of Credit such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Loans are held ratably Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such existing Lenders Revolving Credit Lender’s Revolving Credit Commitment and New Lenders (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)the immediately preceding sentence.
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Incremental Commitments. (aA) The Borrowers and any Borrower may, not more than two times in the aggregate after the Closing Date, at the Borrower’s written request to Agent, request that one or more Lenders and/or other financial institutions that will become Lenders hereunder (including New Lendersx) may from time to time prior make incremental term Loans hereunder either through adding such incremental term Loans to the outstanding principal amount of the Initial Revolving Termination Date agree that Term Loans hereunder or through a separate Tranche of Term Loans hereunder (such Lenders shall makeincremental term Loans, obtain or in either case, “Incremental Term Loans”) and/or (y) increase the amount of their Revolving Loan Commitments hereunder (eachsuch incremental increase in the Revolving Loan Commitments, a “Commitment IncreaseIncremental Revolving Loan Commitments” and, together with any Incremental Term Loans, “Incremental Commitments”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying ); provided that:
(i) the aggregate principal amount of such increase all Incremental Commitments made pursuant to this Section 1.12 shall not exceed $20,000,000 and the aggregate principal amount of any requested Incremental Commitments shall be in a minimum amount of $5,000,000 and in integral multiples of $2,500,000 in excess thereof;
(ii) the applicable Increased Facility Closing Date; provided that immediately prior to Credit Parties shall execute and after giving effect to any deliver such increase agreements, instruments, documents, resolutions, opinions of counsel, solvency certificate and officer’s certificates and take such other actions as may be reasonably requested by Agent in the Revolving Commitments connection with such Incremental Commitments;
(iiii) no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to such Incremental Commitments and the application of proceeds therefrom;
(iiiv) Holdings shall be in compliance, on a Pro Forma Basis (and assuming the full utilization of the respective Incremental Commitments), as of the last day of the most recently ended Calculation Period on or prior to the date of the respective incurrence of Loans pursuant to such Incremental Commitments, with (x) each of the representations financial covenants specified in Sections 6.2 and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 6.3 and (y) a Total Senior Leverage Ratio that is equal to or less than 3.75:1.00;
(v) the Incremental Term Loans made under this Section 1.12 shall have an Incremental Term Loan Maturity Date no earlier than the Initial Term Loan Maturity Date and shall have a Weighted Average Life to Maturity no shorter than the then remaining Weighted Average Life to Maturity of the Initial Term Loans; provided, however, if the new Incremental Term Loans to be made pursuant to this Section 1.12 are, at the Borrower’s election, to be added to the aggregate outstanding principal amount of the Initial Term Loans, such Incremental Term Loans shall have the same Maturity Date as the Initial Term Loans and shall have the same scheduled amortization dates as the Initial Term Loans pursuant to subsection 1.8(a)(i), and with the amount of each scheduled amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as was theretofore applicable to the Initial Term Loans, thereby increasing the amount of each then remaining scheduled amortization payments of the Initial Term Loans pursuant to subsection 1.8(a)(i) proportionately;
(vi) if the Applicable Margins for any Tranche of Incremental Term Loans made under this Section 1.12 (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount (amortized over the shorter of (x) the life of such Tranche of Incremental Term Loans and (y) four years) payable to all Lenders providing such Tranche of Incremental Term Loans and any LIBOR Rate floor or Base Rate floor applicable to such Incremental Term Loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Tranche of Incremental Term Loans) determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Applicable Margins (which, for such purposes only, shall be deemed to include all up-front or similar fees or original issue discount originally payable to all Lenders that provided the Initial Term Loans and any LIBOR Rate floor or Base Rate floor applicable to the Initial Term Loans) relating to the Initial Term Loans immediately prior to the making of such Tranche of Incremental Term Loans by more than five Increased Facility Closing Dates 0.50%, then the Applicable Margins relating to the Initial Term Loans shall be adjusted to be equal to the Applicable Margins (determined as provided above) relating to such Tranche of Incremental Term Loans minus 0.50%; provided, however, if such Tranche of Incremental Term Loans are, at the Borrower’s election, to be added to the aggregate outstanding principal amount of the Initial Term Loans, then the Applicable Margins (determined as provided above) for the Initial Term Loans shall be increased to be equal to the Applicable Margins (as determined as provided above) relating to such Tranche of Incremental Term Loans;
(vii) if the Applicable Margins with respect to the Revolving Loans to be incurred pursuant to an Incremental Revolving Loan Commitment shall be higher in any respect than those applicable to any other Revolving Loan, the Applicable Margins for such other Revolving Loans and extension of credit hereunder shall be automatically increased as and to the extent needed to eliminate any deficiencies in accordance with the definition of Applicable Margin contained herein;
(viii) Holdings shall have demonstrated to Agent’s reasonable satisfaction that the full amount of the Loans to be incurred pursuant to the respective Incremental Commitments may be selected incurred without violating the terms of the Second Lien Indebtedness Documents, any other material Indebtedness of Holdings or any of its Subsidiaries or the documentation governing any such Indebtedness;
(ix) except as expressly set forth above, all other terms and conditions with respect to any Incremental Term Loans made pursuant to this Section 1.12 shall be the same terms and conditions as those in connection with the Initial Term Loans (although such Tranche of Incremental Term Loans (x) need not have any prepayment premiums or fees in connection therewith unless otherwise agreed to by the Borrowers Borrower and the Lenders making such Tranche of Incremental Term Loans and (y) may have covenants and other provisions applicable thereto only to periods after the Closing Datelatest Maturity Date then in effect); and
(x) except as expressly set forth above, all other terms and conditions with respect to any Incremental Revolving Commitments made pursuant to this Section 1.12 shall be the same terms and conditions as those in connection with the Revolving Loan Commitments. Any request under this Section 1.12 shall be submitted by the Borrower in writing to Agent (which shall promptly forward copies to the Lenders). The Borrower may also specify any fees offered to those Lenders and/or other financial institutions that will become Lenders hereunder (the “Increasing Lenders”) that agree to provide Incremental Commitments (which fees, as it relates to any Lender and/or other financial institution that will become a Lender, may be variable based upon the amount of Initial Commitments that any such Lender and/or other financial institution is willing to provide). No Lender shall have any obligation obligation, express or implied, to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bankprovide Incremental Commitments and, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar LoansIncremental Revolving Loan Commitments, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s))until such time, if any, as applicable (as modified hereby); provided that with respect such Lender has agreed in its sole discretion to subclauses (A) provide an Incremental Revolving Loan Commitment and (B)executed and delivered to Agent an Incremental Loan Amendment, (x) the prepayment to, and borrowing from, any existing such Lender shall not be effected by book entry obligated to the extent that fund any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective excess of its Revolving Commitments of such Lenders (after Loan Commitment as in effect prior to giving effect to such Incremental Revolving Loan Commitment Increase) and (C) pay incurred pursuant to this Section 1.12. Only the Lenders the amounts, if any, payable under consent of each Increasing Lender shall be required pursuant to this Section 2.15 1.12. No Lender which declines to provide Incremental Commitments may be replaced with respect to its existing Term Loans and/or Revolving Loan Commitment as a result of any thereof without such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Lender’s consent.
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Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Borrower may, by written notice to the Administrative Agent, from time to time and at any time up until and including the date that is five (5) Business Days prior to the Initial Revolving Termination Date agree that such Lenders shall makeMaturity Date, obtain advise of the obtaining of one or increase the amount of their Revolving more Incremental Commitments (eacheach such increase, a “Commitment Increase”) by executing in an aggregate amount not to exceed (a) $100,000,000, plus (b) so long as either a Pledge Release Period is then in effect or after giving effect to such Commitment Increase, the Borrower’s Senior Secured Net Leverage Ratio (assuming such Commitment Increase is fully drawn and delivering otherwise on a Pro Forma Basis as of the then most recently ended Test Period) shall not exceed 2.00:1.00, $100,000,000; provided that, in either case, (i) no Event of Default shall exist after giving effect to the Administrative Agents an Increased Facility Activation Notice specifying incurrence of such Commitment Increase and (ii) after giving effect to such Commitment Increase, the Borrower shall be in compliance with the financial covenant set forth in Section 6.08 (assuming such Commitment Increase is fully drawn and otherwise on a Pro Forma Basis as of the then most recently ended Test Period); provided, further that, to the extent then available, each Commitment Increase shall apply to clause (b) of this Section 2.21 prior to clause (a). Such notice shall set forth (i) the amount of such increase Commitment Increase (provided; however, that the amount of each Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000) and (ii) the applicable Increased Facility Closing date on which each such Incremental Commitment is requested to become effective (which shall not be later than the Maturity Date; ) (each such date, an “Incremental Effective Date”). Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that immediately prior the Administrative Agent shall have consented (such consent not to and after giving effect be unreasonably withheld or delayed) to any such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Revolving Commitments (i) no Default or Event Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent, and, in the case of Default shall have occurred an Additional Lender, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be continuing and (ii) each bound by all of the representations terms and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (orprovisions hereof. The Incremental Amendment may, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement as may be necessary or appropriate, in the Maximum Permitted Increase Amount, and (ii) without the consent reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateSection 2.21. No Lender shall have be obligated to provide any obligation to participate in any increase described in this paragraph Commitment Increases, unless it agrees so agrees. Upon each increase in the Commitments pursuant to do so in its sole discretion.
this Section 2.21, (ba) Any additional bank, financial institution or other entity which, with the consent each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement Commitment Increase (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Commitment Increase Lender”) shall become in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans such Lender’s participations hereunder in an amount equal to outstanding LC Exposure such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in LC Exposure held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the total Commitments represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans are held ratably outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by such existing Lenders accrued interest on the Revolver Loans being prepaid and New Lenders any costs incurred by any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The Administrative Agent shall promptly notify each Lender of the execution and delivery of each Incremental Amendment. As of each Incremental Effective Date, this clause Agreement shall be deemed supplemented by each such Incremental Amendment, each such applicable Additional Lender shall be a “Lender” hereunder, and each such Incremental Lender’s Incremental Commitment shall be its “Commitment” hereunder (cin the case of an Additional Lender) or shall increase its Commitment hereunder (in the case of an existing Lender).
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Incremental Commitments. (a) The Borrowers and any one or more Lenders This Amendment shall also serve as a Commitment Increase activation notice referred to in Section 2.21 of the Credit Agreement (including New Lendersthe “Commitment Increase Activation Notice”) may from time with respect to time prior $60,000,000 in aggregate amount of Incremental Commitments. Each Person signatory hereto whose name appears on Annex A hereto (each such Person, an “Incremental Lender”) hereby agrees to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase provide Incremental Commitments in the amount of their Revolving set forth opposite such Incremental Lender’s name on Annex A hereto under the caption “Incremental Commitment”, which Incremental Commitments (each, a “Commitment Increase”) by executing and delivering to shall be Commitments under the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Amended Credit Agreement. The Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase Date in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each respect of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents Incremental Commitments shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Amendment Effective Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bankThe Borrower, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects and each Lender party hereto agree to become a “Lender” under this Agreement in connection with any transaction described waive the 10 Business Day notice requirement set forth in Section 2.19(a2.21 of the Credit Agreement for this Commitment Increase Activation Notice.
(c) shall execute Each Incremental Lender that was not a New Lender Supplement under the Credit Agreement immediately prior to the Amendment Effective Date (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) agrees that on the Amendment Effective Date, it shall become a Lender for all purposes and to under the same extent as if originally a party Amended Credit Agreement having the Commitment under the Amended Credit Agreement set forth on Annex A hereto opposite such New Lender’s name under the caption “Incremental Commitment” and shall be bound by the obligations of the Amended Credit Agreement as a Lender thereunder and entitled to the benefits of this the Amended Credit Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), effective as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increasedAmendment Effective Date. The Administrative Agent and the Lenders hereby parties hereto agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)) shall serve as the New Lender Supplement required by Section 2.21 of the Credit Agreement in respect of each New Lender.
(d) The Administrative Agent hereby consents to each New Lender becoming a Lender under the Amended Credit Agreement pursuant to Section 2.21 of the Credit Agreement.
Appears in 1 contract
Sources: Omnibus Amendment (AV Homes, Inc.)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) Borrower may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent elect to request incremental revolving credit commitments (ithe “Incremental Revolving Credit Commitments”) for the amount purpose of such increase and (ii) increasing the applicable Increased Facility Closing Dateaggregate Revolving Credit Commitments; provided that immediately prior to (1) the aggregate amount of all Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $100,000,000 and after giving effect to any such (2) the aggregate amount of each increase in the Revolving Credit Commitments pursuant to this section shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify the date (ieach, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (any such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of the related Increased Amount Date; provided that:
(A) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitments and (ii2) each the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Revolving Credit Commitments shall constitute Obligations of the representations Borrower, shall be secured and warranties made guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and conditions as other Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall pay any Loan Party in or and all costs required pursuant to the Loan Documents Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Revolving Credit Commitment shall be true entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility, and correct any Extensions of Credit made in all material respects connection with each Incremental Revolving Credit Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit made hereunder;
(or, if such representations and warranties are qualified by materiality, in all respectsE) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date Incremental Revolving Credit Commitments shall be true effected pursuant to one or more joinder agreements (each a “Joinder Agreement”) executed and correct delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in all material respects (orform and substance reasonably satisfactory to the parties thereto and may, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement and the Maximum Permitted Increase Amountother Loan Documents as may be necessary or appropriate, and (ii) without in the consent opinion of the Administrative Agent, to effect the provisions of this Section 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of the chief financial officer or treasurer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 any Incremental Revolving Credit Commitment and (y) no more than five Increased Facility Closing Dates may the making of any Revolving Credit Loans pursuant thereto (with any Incremental Revolving Credit Commitment being deemed to be selected fully funded); and
(G) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the Borrowers after board of directors (or equivalent governing body) of each Credit Party authorizing the Closing Date. No Lender shall have borrowing of Revolving Credit Loans and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch transaction.
(b) Any additional bank, financial institution or other entity which, with the consent The New Lenders shall be included in any determination of the Parent Borrower Required Lenders and the Administrative Agent (which consent shall New Lenders will not be unreasonably withheld), elects to become constitute a “Lender” separate voting class or separate tranche of Loans for any purposes under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each On any Increased Facility Closing DateAmount Date on which any Incremental Revolving Credit Commitment becomes effective, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal subject to the outstanding Eurodollar Base Rate foregoing terms and conditions, each New Lender with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to subclauses such Incremental Revolving Credit Commitment.
(Ad) The parties acknowledge and (B), (x) agree that the prepayment to, and borrowing from, any existing Lender shall be effected by book entry $50,000,000 of incremental Revolving Credit Commitments made available to the extent that any portion Borrower pursuant to the Second Amendment constitutes a utilization of the amount prepaid to incremental availability contemplated by this Section 5.14 such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto that utilization, the aggregate amount of Incremental Revolving Loans are held ratably Credit Commitments remaining which may be sought or obtained pursuant to this Section 5.14 after the Second Amendment Effective Date is $50,000,000.
(e) The parties acknowledge and agree that the $50,000,000 of Incremental Revolving Credit Commitments made available to the Borrower pursuant to the Third Amendment constitutes a utilization of the incremental availability contemplated by this Section 5.14 such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (that, after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewiththat utilization, the Lenders shall aggregate amount of Incremental Revolving Credit Commitments remaining which may be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected sought or obtained pursuant to this clause (c)Section 5.14 after the Third Amendment Effective Date is $0.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, $240,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers Borrower shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and US Borrower may at any one time or more Lenders (including New Lenders) may from time to time after the Closing Date (but prior to the Initial Revolving Termination Date agree that such Lenders Latest Maturity Date), by written notice to the Administrative Agent (whereupon the Administrative Agent shall makepromptly deliver a copy to each of the Lenders) (an “Incremental Loan Request”), obtain request (i) the establishment of one or increase more new term loan commitments, which may be in the same Credit Facility as any outstanding Term Loans of an existing Class of Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more increases in the amount of their the Revolving Commitments of an existing Class of Revolving Commitments (each, a “Revolving Commitment Increase”) by executing and delivering or the establishment of one or more new revolving commitments (any such new revolving commitments, collectively with any Revolving Commitment Increases, the “Incremental Revolving Commitments”; the Incremental Revolving Commitments, collectively with any Incremental Term Commitments, the “Incremental Commitments”) in an aggregate principal amount not to exceed, as of any date of determination, the Administrative Agents an Increased Facility Activation Notice specifying sum of (iA) $300,000,000 less the aggregate principal amount of Incremental Equivalent Indebtedness incurred pursuant to clause (A) of Section 6.01(r) at or prior to such time, plus (B) the aggregate amount of such increase voluntary prepayments of Term Loans made pursuant to Section 2.10(a) and (ii) the applicable Increased Facility Closing Date; provided that immediately prepayments of Revolving Loans made in connection with a permanent repayment and termination of corresponding Revolving Commitments prior to and after such time (in each case, other than any such voluntary prepayments made with the proceeds of Indebtedness), less the aggregate principal amount of Incremental Equivalent Indebtedness incurred pursuant to clause (B) of Section 6.01(r) at or prior to such time, plus (C) additional amounts so long as the Consolidated First Lien Leverage Ratio, determined on a pro forma basis as of the last day of the most recently ended Test Period, as if any Incremental Term Loans or Incremental Revolving Loans, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period (but without giving effect to any such increase in amount incurred simultaneously under the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses immediately preceding clauses (A) and (B)), (x) and, in each case, with respect to any Incremental Revolving Commitment, assuming a borrowing of the prepayment tomaximum amount of Loans available thereunder , and borrowing fromdoes not exceed 2.50:1.00; provided that, any existing Lender shall be effected by book entry to the extent that the proceeds of any portion Incremental Term Loans or Incremental Term Commitments are intended to be applied to finance a Limited Condition Acquisition, the Consolidated First Lien Leverage Ratio shall be tested in accordance with Section 1.08(c). Notwithstanding anything herein to the contrary, no Incremental Amendment shall increase the Dollar Equivalent of the aggregate principal amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, of the Revolving Loans are held ratably that may be made to (1) the Canadian Borrower to an amount in excess of $40,000,000 and (2) the UK Borrower to an amount in excess of $10,000,000, unless the nominal principal amount of the Goderich Mine Mortgage is increased by an amount equal to such existing Lenders and New Lenders in accordance with the respective Revolving Commitments Dollar Equivalent increase plus 20% of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Dollar Equivalent increase.
Appears in 1 contract
Sources: Credit Agreement (Compass Minerals International Inc)
Incremental Commitments. (ai) The Borrowers and any one or more Lenders Borrower may by written notice to the Administrative Agent (including New whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) may request, from time to time prior to (a) the Initial Revolving Termination Date agree that such Lenders shall make, obtain extension of one or increase more new Term Loan Commitments or one or more increases in the amount of their Revolving existing Term Loan Commitments (eachany such new or increased Term Loan Commitment, a an “Commitment IncreaseIncremental Term Commitment”) and (b) the extension of one or more new Revolving Credit Commitments or one or more increases in the existing Revolving Credit Commitments (any such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) not to exceed $50,000,000. Each Incremental Commitment shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by executing the Borrower and delivering the Administrative Agent). Each notice delivered pursuant to this Section 3A.1 shall specify (I) the date (the “Increase Effective Date”) on which the Borrower proposes that the proposed Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date in which such notice is delivered to the Administrative Agents an Increased Facility Activation Notice specifying Agent (iunless otherwise consented to by the Administrative Agent in its discretion), (II) the amount total of the Incremental Commitments requested by the Borrower and (III) the identity of the banks, financial institutions and other entities to whom the Borrower proposes that any portion of such increase Incremental Commitments be allocated and (ii) the applicable Increased Facility Closing Date; provided that immediately prior amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be Eligible Assignees. Any existing Lender approached to and after giving effect to any such increase in the Revolving Commitments (i) no Default provide all or Event of Default shall have occurred and be continuing and (ii) each a portion of the representations and warranties made by any Loan Party in Incremental Commitments may elect or pursuant to the Loan Documents shall be true and correct in all material respects (ordecline, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) , to provide such Incremental Commitment. Any additional bank, financial institution proposed new Lender shall enter into a joinder or other entity which, with the consent of the Parent Borrower agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with such additional Eligible Assignees becoming Lenders and any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increasean Incremental Commitment, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretocollectively, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c“Incremental Lenders”).
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. (a) The Borrowers Borrower may at any time, and any one or more Lenders (including New Lenders) may from time to time prior time, by notice to the Initial Revolving Termination Date agree that such Lenders shall makeAdministrative Agent, obtain or request an increase in the amount of their Revolving Aggregate Commitments (eachprovided that there shall be no increase in the Revolving Facility Sublimit pursuant to this Section 2.24) provided for under this Agreement by an amount (in the aggregate for all such requests) not exceeding $500,000,000 (each such increase, a an “Incremental Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying ); provided, that (i) the amount maximum Aggregate Commitment hereunder shall not at any given time be in excess of such increase and $2,200,000,000, (ii) the applicable Increased maximum Revolving Facility Closing Date; provided that immediately prior to and after giving effect to Sublimit shall not at any given time be in excess of $750,000,000, (iii) any such increase Incremental Commitment Increase shall be in the Revolving Commitments a minimum amount of $25,000,000 and any whole multiple of $10,000,000 in excess thereof and (iv) each Incremental Commitment Increase will be treated as a Commitment under this Agreement; provided, further, that (i) no Lender shall be required to provide all or any portion of such Incremental Commitment Increase and (ii) no Default or Event of Default shall have occurred and be continuing or would result after giving effect to such Incremental Commitment Increase on the Incremental Commitment Increase Effective Date. To achieve the full amount of a requested increase, the Borrower may also invite additional banks or other financial institutions to become Incremental Increase Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent (ii) each such joinder agreement, an “Incremental Joinder Agreement”); provided that each Incremental Increase Lender shall be subject to the approval of the representations Administrative Agent and warranties made by each Issuing Lender (such approval in each case not to be unreasonably withheld or delayed) and the approval of the Borrower, but not the approval of any Loan Party other Lender. If the Aggregate Commitments are increased in or pursuant accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitment Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Incremental Commitment Increase Effective Date. On each Incremental Commitment Increase Effective Date, each Lender, immediately prior to all Incremental Commitment Increases occurring on such Incremental Commitment Increase Effective Date, will automatically and without further action be deemed to have assigned to each Incremental Increase Lender providing a portion of the Incremental Commitment Increase on such Incremental Commitment Increase Effective Date, and each such Incremental Increase Lender will automatically and without further action be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, each Lender (including each Incremental Increase Lender) shall hold its Applicable Percentage (including any additional Commitments of the Incremental Increase Lenders) of the participations hereunder in Letters of Credit. Notwithstanding anything to the Loan Documents contrary set forth herein, the terms of each Incremental Commitment Increase shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and identical to the Commitments made as of such date as if made on and as of such date (the Closing Date except that the Applicable Rate in respect of the Letter of Credit Fee and/or the Commitment Fee and any representations and warranties which expressly relate to an earlier date other pricing terms (including upfront fees) shall be true determined by the Borrower and correct in all material respects (orthe applicable Incremental Increase Lenders. As a condition precedent to such increase, if such representations and warranties are qualified the Borrower shall deliver to the Administrative Agent a certificate signed by materialitya senior vice president, in all respects) as the chief financial officer or the treasurer of such earlier date). Notwithstanding the foregoing, Borrower (i) without certifying that such Incremental Commitment Increase and the consent performance of the Required Lenders, Borrower’s obligations thereunder (in form and substance reasonably satisfactory to the aggregate amount of incremental Revolving Commitments obtained after Administrative Agent) have been duly authorized (and attaching any evidence thereof reasonably requested by the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountAdministrative Agent), and (ii) certifying that, as of the Incremental Commitment Increase Effective Date, before and after giving effect to such Incremental Commitment Increase, (A) the representations and warranties contained in Article IV and the other Loan Documents are true (except that for such purposes, the representations and warranties contained in Section 4.04(a) shall be deemed to refer to the most recent statements furnished pursuant to Section 5.01(a)), (B) no default or event of default under any project engineering, procurement, construction, maintenance and related activities and/or contracts of the Borrower or any of its Subsidiaries shall have occurred and be continuing which could reasonably be expected to materially and adversely affect the ability of the Borrower to perform its obligations under the Loan Documents and (C) no Default shall have occurred and be continuing. Solely with respect to any Incremental Commitment Increase, this Section shall supersede any provisions in Sections 2.14(c), 2.14(d), 8.04 or 8.05 to the contrary. In connection with any Incremental Commitment Increase, the Administrative Agent and the Borrower may, without the consent of any Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by effect the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits provisions of this AgreementSection 2.24.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Sources: Revolving Loan and Letter of Credit Facility Agreement (Fluor Corp)
Incremental Commitments. (a) The Borrowers and Loan Parties may at any one time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by written notice to the Initial Revolving Termination Date agree Administrative Agent (an “Incremental Request”), request (i) one or more new commitments which shall be in the same Facility as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) under this Agreement, (ii) one or more new term loans in a separate facility from the Facilities and that such Lenders shall makeare either unsecured or secured on a pari passu or junior lien basis to the Facilities (the “Other Commitments” and the loans in respect thereof, obtain the “Other Term Loans”), (iii) one or increase more series of pari passu first lien secured, junior lien secured or unsecured notes (the “Other Notes”), (iv) one or more increases in the amount of their the Revolving Credit Commitments (each, a “Revolving Commitment Increase”), and (v) one or more new Classes of Revolving Credit Loans (the “Additional Revolving Commitments” and together with the Revolving Commitment Increase, the “Incremental Revolving Commitments and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders. Notwithstanding anything herein to the contrary, the Lenders party to this Agreement at the time of delivery of the written notice by executing and delivering the Loan Parties to the Administrative Agents an Increased Facility Activation Notice specifying Agent pursuant to this Section 2.14(a) shall have the right, on a pro rata basis, to (i) make an initial offer with respect to any such Other Commitments and/or Incremental Commitments (and the amount Indebtedness to be incurred in respect thereof) within five Business Days of receipt of such increase written notice and (ii) in the event such initial offer is not accepted by the Borrower or its applicable Increased Facility Closing Date; Restricted Subsidiary (provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Lead Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests rejected such offer unless it shall accept the same in writing within five Business Days after having received such initial offer), provide any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Other Commitments as so increased. The Administrative Agent and/or Incremental Commitments (and the Lenders hereby agree that Indebtedness to be incurred in respect thereof) on the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)same terms as those being offered from any other financial institution or lending source.
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Incremental Commitments. (a) The Borrowers and Loan Parties may at any one time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by written notice to the Initial Revolving Termination Date agree Administrative Agent (an “Incremental Request”), request (i) one or more new commitments which shall be in the same Facility as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) under this Agreement, (ii) one or more new term loans in a separate facility from the Facilities and that such Lenders shall makeare either unsecured or secured on a pari passu or junior lien basis to the Facilities (the “Other Commitments” and the loans in respect thereof, obtain the “Other Term Loans”), (iii) one or increase more series of pari passu first lien secured, junior lien secured or unsecured notes (the “Other Notes”), (iv) one or more increases in the amount of their the Revolving Credit Commitments (each, a “Revolving Commitment Increase”), and (v) one or more new Classes of Revolving Credit Loans (the “Additional Revolving Commitments” and together with the Revolving Commitment Increase, the “Incremental Revolving Commitments and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in each case, solely to the extent the PIK Period remains in effect, under this Agreement, whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders. Notwithstanding anything herein to the contrary, the Lenders party to this Agreement at the time of delivery of the written notice by executing and delivering the Loan Parties to the Administrative Agents an Increased Facility Activation Notice specifying Agent pursuant to this Section 2.14(a) shall have the right, on a pro rata basis, to (i) make an initial offer with respect to any such Other Commitments and/or Incremental Commitments (and the amount Indebtedness to be incurred in respect thereof) within five Business Days of receipt of such increase written notice and (ii) in the event such initial offer is not accepted by the Borrower or its applicable Increased Facility Closing Date; Restricted Subsidiary (provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Lead Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests rejected such offer unless it shall accept the same in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).writing 106
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Incremental Commitments. The Company may, upon five (a5) The Borrowers and any Business Days’ notice to the Administrative Agent, increase the Revolving Loan Commitment amount by adding one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain lenders or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in increasing the Revolving Commitments (i) no Default or Event Loan Commitment of Default shall have occurred and be continuing and (ii) each of a Lender, determined by the representations and warranties made by any Loan Party Company in or pursuant its sole discretion, subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, Swingline Lender and Issuing Banks (x) each increase effected pursuant such consent not to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects which lender or lenders are willing to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement commit to such increase (eacheach such lender, a “New Lender SupplementLender,” and such commitment, the “Incremental Commitment”); provided, substantially in however, that (i) the form Company may not elect any Incremental Commitment after the occurrence and during the continuance of Exhibit Han Event of Default, whereupon such bankincluding, financial institution or other entity without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (a “New Lender”ii) shall become a Lender for all purposes and to the same extent as if originally a party hereto and each Incremental Commitment shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to such prepayment all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $4,400,000,000 and (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(siv) ending on the date(s) effective date of any then outstanding Interest Period(s))the Incremental Commitment, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)each New Lender will, (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent applicable, purchase at par that any portion of outstanding Loans of the amount prepaid to other Lenders or take such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to other actions as the Administrative Agent, so that, after giving effect thereto, Agent may determine to be necessary to cause the Revolving Loans are and funded and unfunded participations in Letters of Credit and Swingline Loans to be held ratably pro rata by such existing Lenders and New the Lenders in accordance with the respective Revolving Commitments Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and delivering such Lenders (after giving effect to such Commitment Increase) and (C) pay counterpart to the Lenders Administrative Agent. Over the amountsterm of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, if any, payable under any Incremental Commitment made pursuant to this Section 2.15 as a result 2.14 may be effected by adding one or more tranches of any such prepayment. Concurrently therewith, the Lenders Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have adjusted their participation interests in any outstanding Letters be “Revolving Loan Commitments” for purposes of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent this Section 2.14 (other than clause (iv) above)), and the Lenders hereby agree that any amendment required to implement an Incremental Commitment may be effected by the minimum borrowingconsent of the Company and only those Lenders that agree to participate in any such tranche, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall provided that the aggregate amount of the commitments do not apply exceed the Dollar Equivalent of $4,400,000,000 at any time. Notwithstanding anything to the transactions effected contrary herein, no Lender shall be required to increase its Commitment pursuant to this clause (c)Section 2.14.
Appears in 1 contract
Sources: Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Amount and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. Upon the satisfaction of the following conditions (a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior such date of satisfaction, the “Incremental Facility Effective Date”), the total Revolving Facility Commitments shall be increased by an amount equal to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments Incremental Amount:
(i) no Default or Event of Default shall have occurred and be continuing and or shall result after giving effect to the Incremental Revolving Facility;
(ii) the Borrowers shall have paid to the Administrative Agent for the account of each Incremental Revolving Facility Lender (other than Defaulting Lenders) having Incremental Revolving Facility Commitments, ratably in accordance with each such Lender’s Incremental Revolving Facility Percentage, an accordion fee (the “Incremental Facility Exercise Fee”) equal to the product of (i) the total Incremental Revolving Facility Commitments multiplied by (ii) 0.125% per annum;
(iii) the termination of the representations AB Receivables Financing and warranties made by any Loan Party the payment in full or pursuant provision for payment in full of all obligations owing to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materialitypurchasers under the AB Receivables Financing, in each case in a manner reasonably acceptable to the Administrative Agent;
(iv) the Administrative Agent shall maintain a senior perfected security interest in substantially all respectsof the AB Receivables owned by Muscle Shoals; and
(v) on the Administrative Agent shall have received a written notice signed by a Responsible Officer of each Borrower, notifying the Administrative Agent of the Borrowers’ election to exercise the Incremental Revolving Facility and certifying as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct the matters set forth in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date)this Section 2.15. Notwithstanding On the foregoingIncremental Facility Effective Date, (i) without each relevant Incremental Revolving Facility Lender shall make available to the consent Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the Required other Lenders, as being required in order to cause, after giving effect to such increase and the aggregate amount use of incremental such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Commitments obtained after Facility Loans of all the Closing Date pursuant Lenders to this paragraph shall not exceed the Maximum Permitted Increase Amountequal its Pro Rata Share of such outstanding Revolving Facility Loans, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests repaid and reborrowed all outstanding Revolving Facility Loans 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 any outstanding Letters of Credit so that such interests are held ratably a notice delivered by the applicable Borrower, in accordance with their the requirements of Section 2.03). The 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 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 so increased. The in effect immediately prior to the Incremental Facility Effective Date shall be secured by any Real Property unless and until the flood diligence required by Sections 6.02 and 10.01 has been completed in a manner satisfactory to each Lender, as confirmed by written notice from each such Lender to the Administrative Agent and the Lenders hereby agree that Borrowers after the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Facility Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Incremental Commitments. (a) The Borrowers and any may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents Agent, request Incremental Commitments from one or more Incremental Lenders, which may include any existing Lender; provided that (i) no Lender shall be required to provide any Incremental Commitment, (ii) the aggregate amount of Incremental Commitments per Additional Collateral Vessel shall not exceed the Incremental Commitment Amount and (iii) the proceeds thereof shall be used to finance the purchase by the Borrower or a Borrower Subsidiary Guarantor (or a newly formed subsidiary of the Borrower to become a Borrower Subsidiary Guarantor) of an Increased Facility Activation Notice specifying Additional Collateral Vessel and any Related Assets selected by the Borrower in respect thereof, or Equity Interests in the owner of an Additional Collateral Vessel and any Related Assets selected by the Borrower in respect thereof. Such notice shall set forth (i) the amount of such increase the Incremental Commitments being requested (which shall not exceed the then-current Incremental Commitment Amount and shall be in minimum increments of $5,000,000 and a minimum amount of $20,000,000 or equal to the remaining Incremental Commitment Amount) and (ii) the applicable Increased Facility Closing Datedate on which such Incremental Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than 60 days after the date of such notice (which time periods for notice may be modified or waived at the discretion of the Administrative Agent)). All loans made pursuant to any Class of Incremental Commitments established under this Section 2.12 are referred to herein as "Other Term Loans", will rank pari passu or junior in right of payment and security with the Term Loans and will, (i) if pari passu in right of security with the Term Loans, benefit equally and ratably from the Liens under the Collateral Agreements and the guarantees under the Guarantee Agreement and will either be an increase in the Term Loans hereunder or be a new Class of term loans hereunder and (ii) if junior in right of security with the Term Loans, benefit on a second priority basis from the Liens under the Collateral Agreements and the guarantees under the Guarantee Agreement pursuant to intercreditor arrangements acceptable to the Administrative Agent. Each Class of Other Term Loans will have terms and conditions substantially identical to the Term Loans (other than with respect to pricing, amortization and maturity) and otherwise will be on terms and subject to conditions reasonably satisfactory to the Administrative Agent.
(b) The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the Other Term Loans to be made thereunder; provided that, without the prior written consent of Lenders holding a majority of the principal amount of the outstanding Loans, (i) the Other Term Loans shall mature no earlier than the Term Maturity Date and will have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, and (ii) if the interest rate spread applicable to any Other Term Loans (which, for this purpose, shall be deemed to include all upfront or similar fees or original issue discount and any pricing "floor" applicable to such Other Term Loans), but excluding any underwriting, arrangement, structuring or other similar fees payable in connection therewith that immediately prior are not generally shared with the Lenders (collectively, "Upfront Payments"), in each case, paid to the Incremental Lenders in respect of such Other Term Loans, exceeds the interest rate spread applicable to the Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Term Loans and any pricing "floor" applicable to the Term Loans) by more than 50 basis points, then the interest rate spread applicable to the Term Loans shall be increased so that it equals (after taking into account Upfront Payments made in respect of the establishment of the Term Loans and any pricing "floor" applicable to the Term Loans) the interest rate spread applicable to the Other Term Loans less 0.50%. For purposes of the foregoing, any original issue discount associated with the Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the lesser of (A) the Weighted Average Life to Maturity of such Loans and (B) four.
(c) Each Incremental Assumption Agreement shall require the consent of only the Parent, the Borrowers, the Administrative Agent and the Incremental Lenders providing the applicable Other Term Loans, but, in each case, not the consents of any other Lenders. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents (other than the Intercreditor Agreement) shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Term Loans evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 4.08, 10.06 and 10.12, the definition of "Required Lenders" and any other provisions of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Borrowers and the Administrative Agent shall deem necessary or advisable in connection with the establishment of such Other Term Loans. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers' consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Other Term Loans may be incurred and no Incremental Assumption Agreement shall become effective under this Section 2.12 unless (i) on the date of such effectiveness and after giving effect to the making of any such increase Other Term Loans contemplated thereby the conditions set forth in paragraphs (r) and (s) of Section 5.01 and the Revolving Commitments covenants set forth in Section 7.18 and Section 7.19 shall be satisfied (i) no Default or Event of Default shall have occurred and be continuing and on a pro forma basis), (ii) each all fees owing in respect of the representations and warranties made by any Loan Party in or pursuant such Incremental Commitments to the Loan Documents shall be true Administrative Agent and correct the Lenders and all expenses in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as respect of such date as if made on and as of such date (except Incremental Commitments that any representations and warranties which expressly relate the Borrowers are required to an earlier date shall be true and correct reimburse have been paid in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoingfull, (iiii) without the consent of the Required LendersAdministrative Agent shall have received legal opinions, the aggregate amount of incremental Revolving Commitments obtained after board resolutions and other closing certificates and documentation as it shall reasonably request relating to such Other Term Loans, consistent with those delivered on the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Section 5.01 and (iiiv) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments date of such Lenders (effectiveness and after giving effect to the making of the Other Term Loans contemplated thereby and the purchase of the Additional Collateral Vessel and such Commitment Increase) and (C) pay to the Lenders the amountsRelated Assets, if any, payable under Section 2.15 as a result 7.07 and the Collateral and Guarantee Requirement shall have been satisfied in respect of any such prepayment. Concurrently therewith, Additional Collateral Vessel and the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters Borrower or the Subsidiary of Credit so that the Borrower acquiring such interests are held ratably in accordance with their Revolving Commitments as so increasedAdditional Collateral Vessel and Related Assets. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply promptly notify each Lender as to the transactions effected pursuant to this clause (c)effectiveness of each Incremental Assumption Agreement.
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Incremental Commitments. No more than two (a2) The Borrowers times following the earlier of (x) the completion of the syndication of the Term Loan Facility (as reasonably determined by the Administrative Agent) and any one or more Lenders (including New Lendersy) may from time to time 90 days after the Closing Date and prior to the Initial Revolving Termination Date agree Term Loan Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the Commitments (any such increase, the “Incremental Commitments”), by an amount not in excess of U.S. $72.0 million in the aggregate or a lesser amount not to exceed any Earn-Out Payment then due and payable. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments and the date the Incremental Term Loans shall be made available, which shall be a date not less than five (5) Business Days after the date on which such Lenders notice is delivered to the Administrative Agent. The Borrower shall make, obtain notify the Administrative Agent in writing of the identity of each Lender or increase other financial institution reasonably acceptable to the amount of their Revolving Commitments Administrative Agent (each, a an “Commitment IncreaseIncremental Lender”) by executing to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and delivering the amounts of such allocations; provided that (x) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide a Incremental Commitment; it being understood that no Lender is committing to provide any Incremental Commitment until such time as such Lender agrees in writing to provide all or a portion of the Incremental Commitment and then only to the Administrative Agents an Increased Facility Activation Notice specifying extent that such commitment complies with the requirements of Regulation U and Regulation X and (iy) any such allocation to the amount Borrower or any of its Affiliates (including any Designated Lender) shall be subject to the terms of Section 9.04(e) and 9.22. Such Incremental Commitments shall become effective as of such increase Increased Amount Date, and such new Loans in respect thereof (ii“Incremental Term Loans”) the applicable shall be made on such Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and be continuing and Incremental Term Loans; (ii) each of the representations and warranties made by any Loan Party contained in or pursuant to Article III and the other Loan Documents shall be true and correct in all material respects (oron and as of the Increased Amount Date, if except to the extent that such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate specifically refer to an earlier date date, in which case they shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding ; (iii) the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph Borrower shall be in compliance, on a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (Pro Forma Basis after giving effect to such Commitment IncreaseIncremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower; (iv) the Leverage Ratio shall be less than 5.75 to 1.00 calculated on a Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, as of the last day of the most recently ended fiscal quarter in respect of the Borrower, (v) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to the Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.15(e); (vi) the Borrower shall make any payments required pursuant to Section 2.14 in connection with the provisions of the Incremental Commitments; (vii) if the initial yield (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on such Incremental Term Loans, (y) if such Incremental Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee from the Borrower or any Subsidiary for doing so (the amount of such discount or upfront fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as the “Incremental Upfront Fee”) and (Cz) pay interest rate floors applicable to such Incremental Term Loans (or, in the event that there are no interest rate floors applicable to such Incremental Term Loans or the interest rate floors applicable to such Incremental Term Loans are less than the interest rate floors applicable to the Lenders Term Loans, the amountsAdjusted Eurodollar Rate (taking into account the interest rate floors, if any, payable under Section 2.15 as applicable to such Incremental Term Loans) applicable to such Incremental Term Loans for a result one-month Interest Period commencing on the applicable Increased Amount Date)) of any Incremental Term Loans exceeds the initial yield of the Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted Eurodollar Rate on the Term Loans, (y) the Upfront Closing Fee and (z) interest rate floors applicable to the Term Loans (or, in the event that there are no interest rate floors applicable to such prepayment. Concurrently therewithIncremental Term Loans or the interest rate floors applicable to such Incremental Term Loans are less than the interest rate floors applicable to the Term Loans, the Lenders Adjusted Eurodollar Rate (taking into account the interest rate floors applicable to the Term Loans) applicable to the Term Loans for a one-month Interest Period commencing on the applicable Increased Amount Date)) by more than 25 basis points (the amount of such excess being referred to herein as the relevant “Yield Differential”)), then each Applicable Margin for each adversely affected existing Term Loan, as applicable, shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loan or the providing of the Incremental Commitment, as the case may be, (viii) neither the maintaining of the Loans nor the commitment to make (or the making of) the Incremental Term Loan and the granting and maintaining of the security interest in connection with the obligations created thereby, will, whether directly or indirectly, and whether immediately, incidentally or ultimately be a violation of, or inconsistent with, the provisions of the Regulations of the Board, including Regulation U or Regulation X, and the Borrower will furnish to the Administrative Agent and each Lender a purpose statement in conformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U, and (ix) the proceeds of any Incremental Term Loans shall be used solely to make earn-out payments (“Earn-out Payments”), if any, due and payable pursuant to the terms of the Acquisition Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to have adjusted their participation interests in any outstanding Letters the extent (but only to the extent) necessary to reflect the existence and terms of Credit so that such interests are held ratably in accordance with their Revolving the Incremental Commitments as so increased. The and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Borrower may revise this Agreement shall to evidence such amendments without the consent of any Lender that is not apply to the transactions effected pursuant to this clause (c)provided such Incremental Commitment or Incremental Term Loans.
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Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase” and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such NAI-1537228099v31537241654v2 Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Initial Revolving Termination Date agree Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such Lenders shall maketime on a pro forma basis, obtain or increase at any time subsequent to the amount incurrence of their Revolving Commitments (each, a “Commitment Increase”) such Incremental Credit Facility by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent on such date. (i) for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do Indebtedness so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (credesignated).
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Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Borrower may, by written notice to the Administrative Agent, from time to time and at any time up until and including the date that is five (5) Business Days prior to the Initial Revolving Termination Date agree that such Lenders shall makeMaturity Date, obtain advise of the obtaining of one or increase the amount of their Revolving more Incremental Commitments (eacheach such increase, a “Commitment Increase”); provided that (i) by executing and delivering no Event of Default shall exist after giving effect to the Administrative Agents an Increased Facility Activation Notice specifying incurrence of such Commitment Increase; and (ii) after giving effect to such Commitment Increase, the Borrower’s Senior Secured Net Leverage Ratio (assuming such Commitment Increase is fully drawn and otherwise on a Pro Forma Basis as of the then most recently ended Test Period) shall not exceed 2.00:1.00. Such notice shall set forth (i) the amount of such increase Commitment Increase (provided; however, that the amount of each Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000) and (ii) the applicable Increased Facility Closing date on which each such Incremental Commitment is requested to become effective (which shall not be later than the Maturity Date; ) (each such date, an “Incremental Effective Date”). Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that immediately prior the Administrative Agent shall have consented (such consent not to and after giving effect be unreasonably withheld or delayed) to any such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Revolving Commitments (i) no Default or Event Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent, and, in the case of Default shall have occurred an Additional Lender, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be continuing and (ii) each bound by all of the representations terms and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (orprovisions hereof. The Incremental Amendment may, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement as may be necessary or appropriate, in the Maximum Permitted Increase Amount, and (ii) without the consent reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to effect the provisions of this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateSection 2.21. No Lender shall have be obligated to provide any obligation to participate in any increase described in this paragraph Commitment Increases, unless it agrees so agrees. Upon each increase in the Commitments pursuant to do so in its sole discretion.
this Section 2.21, (ba) Any additional bank, financial institution or other entity which, with the consent each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement Commitment Increase (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Commitment Increase Lender”) shall become in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans such Lender’s participations hereunder in an amount equal to outstanding LC Exposure such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in LC Exposure held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the total Commitments represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans are held ratably outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by such existing Lenders accrued interest on the Revolver Loans being prepaid and New Lenders any costs incurred by any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The Administrative Agent shall promptly notify each Lender of the execution and delivery of each Incremental Amendment. As of each Incremental Effective Date, this clause Agreement shall be deemed supplemented by each such Incremental Amendment, each such applicable Additional Lender shall be a “Lender” hereunder, and each such Incremental Lender’s Incremental Commitment shall be its “Commitment” hereunder (cin the case of an Additional Lender) or shall increase its Commitment hereunder (in the case of an existing Lender).
Appears in 1 contract
Incremental Commitments. (ai) The Borrowers and any one or more Lenders Borrower may by written notice to the Administrative Agent (including New whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) may request, from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date (a) the extension of one or more new term loan commitments or one or more increases in any existing incremental term loan commitments (any such new or increased incremental term loan commitments, an “Incremental Term Commitment”) and (b) the extension of one or more new Revolving Credit Commitments or one or more increases in the existing Revolving Credit Commitments (any such new or increased Revolving Credit Commitment, an “Incremental Revolving Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Commitments) not to exceed $150,000,000 (provided that any amount of Incremental Commitments extended pursuant to the terms of this Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis). Each Incremental Commitment shall be in an aggregate amount not less than $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrower and the Administrative Agent). Each notice delivered pursuant to this paragraph Section 3A.1 shall specify (I) the date (the “Increase Effective Date”) on which the Borrower proposes that the proposed Incremental Commitments shall be effective, which shall be a date not exceed less than 10 Business Days after the Maximum Permitted Increase Amountdate in which such notice is delivered to the Administrative Agent (unless otherwise consented to by the Administrative Agent in its discretion), (II) the total of the Incremental Commitments requested by the Borrower and (iiIII) without the consent identity of the Administrative Agentbanks, (x) each increase effected pursuant financial institutions and other entities to this paragraph whom the Borrower proposes that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders, but who shall be in Eligible Assignees. Any existing Lender approached to provide all or a minimum amount portion of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates the Incremental Commitments may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so elect or decline, in its sole discretion.
(b) , to provide such Incremental Commitment. Any additional bank, financial institution proposed new Lender shall enter into a joinder or other entity which, with the consent of the Parent Borrower agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with such additional Eligible Assignees becoming Lenders and any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increasean Incremental Commitment, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretocollectively, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c“Incremental Lenders”).
Appears in 1 contract
Sources: Credit Agreement (Vertex, Inc.)
Incremental Commitments. The Company may, upon five (a5) The Borrowers and any Business Days’ notice to the Administrative Agent, increase the Revolving Loan Commitment amount by adding one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain lenders or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in increasing the Revolving Commitments (i) no Default or Event Loan Commitment of Default shall have occurred and be continuing and (ii) each of a Lender, determined by the representations and warranties made by any Loan Party Company in or pursuant its sole discretion, subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, Swingline Lender and Issuing Banks (x) each increase effected pursuant such consent not to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects which lender or lenders are willing to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement commit to such increase (eacheach such lender, a “New Lender SupplementLender,” and such commitment, the “Incremental Commitment”); provided, substantially in however, that (i) the form Company may not elect any Incremental Commitment after the occurrence and during the continuance of Exhibit Han Event of Default, whereupon such bankincluding, financial institution or other entity without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (a “New Lender”ii) shall become a Lender for all purposes and to the same extent as if originally a party hereto and each Incremental Commitment shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to such prepayment all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $6,100,000,000 and (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(siv) ending on the date(s) effective date of any then outstanding Interest Period(s))the Incremental Commitment, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)each New Lender will, (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent applicable, purchase at par that any portion of outstanding Loans of the amount prepaid to other Lenders or take such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to other actions as the Administrative Agent, so that, after giving effect thereto, Agent may determine to be necessary to cause the Revolving Loans are and funded and unfunded participations in Letters of Credit and Swingline Loans to be held ratably pro rata by such existing Lenders and New the Lenders in accordance with the respective Revolving Commitments Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and delivering such Lenders (after giving effect to such Commitment Increase) and (C) pay counterpart to the Lenders Administrative Agent. Over the amountsterm of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, if any, payable under any Incremental Commitment made pursuant to this Section 2.15 as a result 2.14 may be effected by adding one or more tranches of any such prepayment. Concurrently therewith, the Lenders Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have adjusted their participation interests in any outstanding Letters be “Revolving Loan Commitments” for purposes of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent this Section 2.14 (other than clause (iv) above)), and the Lenders hereby agree that any amendment required to implement an Incremental Commitment may be effected by the minimum borrowingconsent of the Company and only those Lenders that agree to participate in any such tranche, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall provided that the aggregate amount of the commitments do not apply exceed the Dollar Equivalent of $6,100,000,000 at any time. Notwithstanding anything to the transactions effected contrary herein, no Lender shall be required to increase its Commitment pursuant to this clause (c)Section 2.14.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (American Tower Corp /Ma/)
Incremental Commitments. (a) The Borrowers may, by written notice to the Administrative Agent on four occasions during the period from the Closing Date to February 1, 2015, request incremental Commitments in an amount not less than $25,000,000 per request and not more than $200,000,000 in the aggregate, together with any increase to the Revolving Committed Amount (under and as defined in the Revolving Credit Agreement) and incremental term loans under the Term Loan B Agreement (such that the Committed Amount after such increase shall never exceed $350,000,000 minus (x) any increase to the Revolving Committed Amount and (y) any incremental term loans under the Term Loan B Agreement)(the “Incremental Limit”) from one or more additional Lenders (including New Lenders) which may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeinclude any existing Lender, obtain or increase the amount of their Revolving Commitments (each, a “Commitment IncreaseNew Term Loan Lender”) by executing and delivering willing to provide such incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the approval of the Administrative Agents Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender or an Increased Facility Activation Notice specifying Affiliate of a Lender. Such notice shall set forth (i) the amount of such increase the incremental Commitments being requested, and (ii) the applicable date on which such incremental Commitments are requested to become effective (the “Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to ”). On any Increased Amount Date on which any such increase in incremental Commitments are effective, subject to the Revolving Commitments satisfaction of the foregoing terms and conditions, (i) no Default or Event of Default each New Term Loan Lender shall have occurred and be continuing make a Loan to the Borrowers (a “New Term Loan”) in an amount equal to its incremental Commitment, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to such incremental Commitment and the New Term Loans made pursuant thereto. The terms and provisions of the representations New Term Loans and warranties made by any Loan Party in or pursuant the incremental Commitments shall be identical to the existing Loans.
(b) The Borrowers and each New Term Loan Documents Lender shall execute and deliver to the Administrative Agent such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such New Term Loan Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Credit Agreement shall be true amended to the extent (but only to the extent) necessary to reflect the existence and correct in all material respects terms of the incremental Commitments and New Term Loans evidenced thereby (orincluding adjusting the Commitment Percentages), if and new Notes shall be issued and the Borrowers shall make such representations borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any such incremental Commitments shall be agreed upon by the Administrative Agent, the New Term Loan Lenders and warranties are qualified by materiality, in all respects) on and as the Borrowers at the time of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date)increase. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described nothing in this paragraph unless it agrees Section 2.7 shall constitute or be deemed to do so in constitute an agreement by any Lender to increase its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this AgreementCommitment hereunder.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no incremental Commitment shall become effective under this Section 2.7 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in Section 5.2 shall (A) prepay be satisfied assuming a Loan were then being made and the outstanding Revolving Loans (if any) in fullAdministrative Agent shall have received a certificate to that effect dated such date and executed by a financial officer of BRT, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (xii) the prepayment toAdministrative Agent shall have received customary legal opinions, board resolutions and borrowing fromother customary closing certificates and documentation as required by the relevant amendment or other documentation and, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to required by the Administrative Agent, so thatconsistent with those delivered on the Effective Date under Section 5.1 and such additional customary documents and filings as the Administrative Agent may reasonably require, after giving effect thereto, and (iii) the Revolving Loans are held ratably by such existing Lenders and New Lenders Borrowers shall be in accordance pro forma compliance with the respective Revolving Commitments of such Lenders (covenants set forth in Section 7.2 after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewithincremental Commitments, the Lenders shall Loans to be deemed to have adjusted their participation interests in any outstanding Letters made thereunder and the application of Credit so the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that such interests are held ratably in accordance with their Revolving Commitments as so increased. The the Administrative Agent may take any and the Lenders hereby agree all action as may be reasonably necessary to ensure that the minimum borrowingall New Term Loans, when originally made, are included in each borrowing of outstanding Loans on a pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)basis.
Appears in 1 contract
Sources: Term Loan Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) The Borrowers and Borrower may at any one time or more Lenders (including New Lenders) may from time to time prior after the Effective Date, by notice to the Initial Revolving Termination Date agree that such Lenders shall makeAdministrative Agent, obtain request one or increase more increases in the amount of their Revolving the Commitments (eacheach such increase, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying ); provided that (i) both at the amount time of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in request and upon the Revolving Commitments effectiveness of any Incremental Amendment referred to below, (ix) no Default or Event of Default shall have occurred and be continuing exist and (iiy) each of the all representations and warranties made by in this Agreement or any other Loan Party in or pursuant to the Loan Documents Document shall be true and correct in all material respects and (orii) the aggregate amount of all Commitment Increases pursuant to this Section 2.20, when added to the initial aggregate amount of the Lenders’ Commitments on the Effective Date, shall not exceed $300,000,000. Each Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed terms of the relevant Commitment Increase. Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the Parent, the Borrower, each Lender agreeing to provide such Commitment Increase, if such representations and warranties are qualified by materialityany, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (oreach Additional Lender, if such representations any, and warranties are qualified by materialitythe Administrative Agent. The Incremental Amendment may, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement as may be necessary or appropriate, in the Maximum Permitted Increase Amount, and (ii) without the consent reasonable opinion of the Administrative AgentAgent and the Borrower, (x) each increase effected pursuant to effect the provisions of this paragraph Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it being understood that all references to “the occasion of any Borrowing” or “issuance, amendment, renewal or extension of a minimum amount Letter of at least $25,000,000 Credit” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and (y) no more than five Increased Facility Closing Dates may be selected such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases for any purpose not prohibited by the Borrowers after the Closing Datethis Agreement. No Lender shall have be obligated to provide any obligation to participate in any increase described in this paragraph Commitment Increases, unless it agrees so agrees. Upon each increase in the Commitments pursuant to do so in its sole discretion.
this Section 2.20, (ba) Any additional bank, financial institution or other entity which, with the consent each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement Commitment Increase (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Commitment Increase Lender”) shall become in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans such Lender’s participations hereunder in an amount equal to outstanding Letters of Credit and Swingline Loans such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Commitments of all Lenders represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans are held ratably being prepaid and any costs incurred by such existing Lenders and New Lenders any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause the immediately preceding sentence.
(c)b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Lorillard, Inc.)
Incremental Commitments. (a) The Borrowers and any Borrower may, from time to time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments and/or additional Revolving Commitments, as applicable (collectively, “Incremental Commitments”), from one or more Lenders (including New in the sole discretion of such Lenders) may from time or Eligible Assignees who will become Lenders, in an aggregate principal amount of up to time prior an amount equal to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount greater of their Revolving Commitments (each, a “Commitment Increase”) by executing $50,000,000 and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date1.00x Consolidated EBITDA; provided that at the time of the incurrence of such Incremental Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (iassuming the full utilization thereof), (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iiB) the Borrower shall be in compliance, on a Pro Forma Basis, with each of the representations Financial Covenants set forth in Sections 7.12(a) and warranties made by any Loan Party in or pursuant (b); provided, further, that each such person, if not already a Lender hereunder, shall be subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materialityapproval of the Administrative Agent and, in all respects) on connection with any additional Revolving Commitment, the L/C Issuer and as of such date as if made on and as of such date the Swingline Lender (except that any representations and warranties which expressly relate to an earlier date approvals shall not be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier dateunreasonably withheld or delayed). Notwithstanding the foregoing, Such notice shall set forth (i) without the consent amount of the Required Lenders, the aggregate amount of incremental Incremental Term Loan Commitments or additional Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and being requested (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph which shall be in minimum increments of $5,000,000 and a minimum amount of at least $25,000,000 20,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or additional Revolving Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (yiii) no more than five Increased Facility Closing Dates may in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be selected by Term Loan Commitments or commitments to make term loans with terms different from the Borrowers after the Closing DateTerm Loans (“Other Term Loans”). No Lender All Incremental Term Loans shall have any obligation to participate be made in any increase described in this paragraph unless it agrees to do so in its sole discretionDollars.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent The Borrower and each Incremental Term Lender and/or additional Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Lender. Subject to clause (which c) below, each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments shall specify the terms of the Incremental Term Loans to be made thereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby and any increase to the Applicable Margins required by the foregoing provisions of this paragraph. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent shall (not to be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(awithheld or delayed) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and furnished to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementother parties hereto.
(c) Upon The terms of each Increased Facility Closing DateIncremental Term Loan and, as applicable, each additional Revolving Commitment shall be reasonably satisfactory to the Borrowers 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;
(Aii) prepay in the case of Incremental Term Loans, shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Loans;
(iii) in the case of Incremental Term Loans, shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing 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, subject to clause (x) below, shall have an Applicable Margin determined by the Borrower and the applicable Incremental Term Lenders;
(vi) 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;
(vii) without the prior written consent of any Loan Party or Credit Party, if the Effective Yield on any secured Other Term Loans (as determined by the Administrative Agent) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein 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 automatically be increased by the Yield Differential, effective upon the making of such Other Term Loans; and
(viii) 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 additional Revolving Commitments shall become effective under this Section 2.11 unless, on the date of such effectiveness, (i) the conditions set forth in paragraphs (a) and (b) of Section 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 Officer of the Borrower; and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders and/or additional Revolving Lenders) closing certificates, opinions of counsel and other customary documentation requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and that following the establishment of any additional Revolving Commitments, the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected are held by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with their new Applicable Percentages. This may be accomplished at the respective Revolving Commitments discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into an ABR Borrowing of such Lenders (after giving effect Class on the date of each Incremental Term Loan or additional Revolving Commitment, or by allocating a portion of each Incremental Term Loan to such Commitment Increase) and (C) pay to each outstanding SOFR Term Borrowing of the Lenders the amountssame Class on a pro rata basis, if any, payable under Section 2.15 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 Credit Agreement that would prohibit such prepaymentan initial Interest Period), or requiring a prepayment and reborrowing of Revolving Loans. Concurrently therewithAny conversion or prepayment made pursuant to the preceding sentence shall be subject to Section 3.5 (it being understood that, the Lenders Administrative Agent shall consult with the Borrower regarding the foregoing and, to the extent practicable, will attempt to pursue options that minimize breakage costs). In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.6(b) required to be made after the making of such Incremental Term Loans shall be deemed to have adjusted their participation interests in any outstanding Letters ratably increased by the aggregate principal amount of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Term Loans.
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Incremental Commitments. (a) The Borrowers At any time during the Revolving Loan Availability Period, Borrower may by written notice to Administrative Agent elect to request an increase to the existing Revolving Loan Commitments (any such increase, the “New Revolving Loan Commitments”) by an amount not in excess of $175,000,000 in the aggregate. Such New Revolving Loan Commitments shall not be less than $10,000,000 individually (or such lesser amount which shall be approved by Administrative Agent), and shall be in integral multiples of $1,000,000 in excess of that amount. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which Borrower proposes that the New Revolving Loan Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (subject to any one or more Lenders (including New extension mutually agreed by the Borrower and the Lenders) may from time to time prior to and (ii) the Initial identity of each Revolving Termination Date agree that such Lenders shall make, obtain Loan Lender or increase the amount of their Revolving Commitments other Person (each, a “Commitment IncreaseNew Revolving Loan Lender”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount whom ▇▇▇▇▇▇▇▇ proposes any portion of such increase New Revolving Loan Commitments be allocated and (ii) the applicable Increased Facility Closing Dateamounts of such allocations; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (iA) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such New Revolving Loan Commitments; (B) both before and be continuing and (ii) after giving effect to such New Revolving Loan Commitments each of the representations and warranties made by any conditions set forth in Section 7.4 shall be satisfied; (C) the New Revolving Loan Party in or Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the New Revolving Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender shall be subject to the requirements set forth in Section 13.5(b); (xD) each increase effected Borrower shall make any payments required pursuant to this paragraph Section 2.10 in connection with the New Revolving Loan Commitments; (E) the allocations of New Revolving Loan Commitments as among existing Revolving Loan Lenders who are New Revolving Loan Lenders shall be in a minimum pro rata as determined by the allocations among the existing Revolving Loan Commitments; (F) the Borrower shall not propose the addition of any New Revolving Loan Lender prior to providing the existing Revolving Loan Lenders an opportunity to accept the full amount of at least $25,000,000 New Revolving Loan Commitments and (yG) no more than five Increased Facility Closing Dates may be selected by the Borrowers after Borrower shall have approached each existing Revolving Loan Lender concurrently to provide all or a portion of the Closing Date. No New Revolving Loan Commitments and each such Lender shall have any obligation had the opportunity to participate in any increase described in this paragraph unless it agrees to do so elect or decline in its sole discretiondiscretion (with elections in excess of the requested New Revolving Loan Commitments being allocated ratably). Each request for New Revolving Loan Commitments shall be accompanied by an updated Pro Forma Model, taking into account the effect of any New Revolving Loan Commitments. For the avoidance of doubt, the maturity date for any New Revolving Loan Commitments shall be no earlier than the Revolving Loan Maturity Date unless otherwise agreed by each of the Lenders.
(b) Any additional bankOn any Increased Amount Date on which New Revolving Loan Commitments are effected, financial institution or other entity which, with subject to the consent satisfaction of the Parent Borrower foregoing terms and conditions, (i) each of the Administrative Agent Revolving Loan Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (which consent shall not be unreasonably withheldtogether with accrued interest), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially such interests in the form of Exhibit H, whereupon Revolving Loans outstanding on such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent Increased Amount Date as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) necessary in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so order that, after giving effect theretoto all such assignments and purchases, the such Revolving Loans are will be held ratably by such existing Revolving Loan Lenders and New Revolving Loan Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Loan Commitments as so increased. The after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Loan Commitments, (ii) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (iii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto.
(c) Administrative Agent shall notify the Lenders promptly upon receipt of ▇▇▇▇▇▇▇▇’s notice of each Increased Amount Date and, in respect thereof, (i) the New Revolving Loan Commitments and the Lenders hereby agree that New Revolving Loan Lenders, and (ii) the minimum borrowingrespective interests in such Revolving Loan Lender’s Revolving Loans, pro rata borrowing in each case subject to the assignments contemplated by this Section 2.14.
(d) The terms and pro rata payment requirements contained elsewhere in provisions of the New Revolving Loans shall be identical to the Revolving Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement shall not apply or and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the transactions effected pursuant provisions of this Section 2.14. Each Lender hereby directs and authorizes the Administrative Agent to execute or cause to be executed any and all further instruments reasonably required by the Borrower to effectuate the provisions of this clause Section 2.14 (cincluding entering into one or more joinder agreements, as applicable).
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Sources: Credit and Guaranty Agreement (Greenbacker Renewable Energy Co LLC)
Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Lenders (including New Incremental Term Lenders) , which may from time to time prior include any existing Lender; provided that each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount approval of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying Agent (which approval shall not be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or such increase and lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the applicable Increased date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed by the Administrative Agent), and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). The Borrower may elect in the notice delivered pursuant to this Section 2.24(a), with the consent of the Administrative Agent and the Issuing Bank, that the proceeds of the Term Loans made pursuant to an Incremental Term Loan Commitment be deposited in the Deposit L/C Collateral Account as collateral for the payment and performance of the Borrower’s reimbursement obligations to the Issuing Bank in respect of Deposit Letters of Credit and that the Deposit L/C Facility Closing DateAmount be increased by an amount equal to the amount of such deposit (such that, upon the date on which such Incremental Term Loan Commitments become effective in accordance with this Section 2.24, the Borrower shall cause the proceeds of any such Incremental Term Loans the subject of such an election, to be deposited in the Deposit L/C Collateral Account as collateral for the payment and performance of its reimbursement obligations to the Issuing Bank in respect of Deposit Letters of Credit, in the manner set forth in and subject to the provisions of Section 2.23(l), whereupon the Deposit L/C Facility Amount shall be automatically increased by an amount equal to the amount of such deposit).
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan 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. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (orthat, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the prior written consent of the Required Lenders, (i) the aggregate amount final maturity date of incremental Revolving Commitments obtained after any Other Term Loans shall be no earlier than the Closing Date pursuant Term Loan Maturity Date, (ii) the average life to this paragraph maturity of the Other Term Loans shall not exceed be no shorter than the Maximum Permitted Increase Amountaverage life to maturity of the Term Loans, and (iiiii) without if the consent of initial yield on such Other Term Loans (as determined by the Administrative Agent, Agent to be equal to the sum of (x) each increase effected pursuant to this paragraph the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to the last sentence of the definition of such term) that would be in effect for a minimum amount of at least $25,000,000 three-month Interest Period commencing on such date and (y) no more than five Increased Facility Closing Dates may be selected by if such Other Term Loans are initially made at a discount or the Borrowers after Lenders making the Closing Date. No Lender shall have same receive a fee directly or indirectly from the Borrower or any obligation to participate in any increase described in this paragraph unless it agrees to do Subsidiary for doing so in its sole discretion.
(b) Any additional bankthe amount of such discount or fee, financial institution or other entity which, with the consent expressed as a percentage of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld)Other Term Loans, elects being referred to become a herein as “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender SupplementOID”), substantially the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for Eurodollar Term Loans (which shall be the form sum of Exhibit Hthe Applicable Percentage for Eurodollar Term Loans increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans on such date (i.e., whereupon such bank, financial institution or other entity 1.75%) would exceed the Adjusted LIBO Rate (a “New Lender”) shall become a Lender for all purposes and without giving effect to the same extent last sentence of the definition of such term) that would be in effect for a three-month Interest Period commencing on such date) plus (B) the OID initially paid in respect of such Term Loans (the amount of such excess above 50 basis points being referred to herein as if originally a party the “Yield Differential”), then the Applicable Percentage for such Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties hereto and hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, this Agreement shall be bound by and entitled deemed amended to the benefits extent (but only to the extent) necessary to reflect the existence and terms of this Agreementthe Incremental Term Loan Commitment, the Incremental Term Loans evidenced thereby and, if applicable, the increase to the Deposit L/C Facility Amount resulting therefrom.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, the Borrowers shall conditions set forth in paragraphs (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (Ab)(ii) and (Bc) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) at the time of, and after giving effect to, the incurrence of the Incremental Term Loans, the Leverage Ratio would not exceed 2.75 to 1.0 (or, in the event that the Declaration Date Transactions have been consummated on or prior to the Outside Date, as from the Declaration Date, 1.25 to 1.0) and (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), (x) when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the prepayment todate of each Incremental Term Loan, and borrowing from, any existing Lender or by allocating a portion of each Incremental Term Loan to each outstanding Eurodollar Term Borrowing on a pro rata basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding sentence shall be effected by book entry 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 the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoIncremental Term Loans are not Other Term Loans, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with scheduled amortization payments under Section 2.11(a)(i) required to be made after the respective Revolving Commitments making of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders Incremental Term Loans shall be deemed to have adjusted their participation interests in any outstanding Letters ratably increased by the aggregate principal amount of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Term Loans.
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Incremental Commitments. (a) The Borrowers and any may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent, request Incremental Commitments from one or more Incremental Lenders, which may include any existing Lender; provided that (i) no Lender shall be required to provide any Incremental Commitment, (ii) each Incremental Lender shall be subject to the approval of the Administrative Agent and the Borrowers (which approvals shall not be unreasonably withheld or delayed) and (iii) the aggregate amount of Incremental Commitments shall not exceed the Incremental Commitment Amount. Such notice shall set forth (i) the amount of such increase the Incremental Commitments being requested (which shall not exceed the then-current Incremental Commitment Amount and shall be in minimum increments of $5,000,000 and a minimum amount of $20,000,000 or equal to the remaining Incremental Commitment Amount) and (ii) the applicable Increased Facility Closing Datedate on which such Incremental Commitments are requested to become effective (which shall not be less than five (5) Business Days nor more than 60 days after the date of such notice (which time periods for notice may be modified or waived at the discretion of the Administrative Agent)). All loans made pursuant to any Class of Incremental Commitments established under this Section 2.12 are referred to herein as "Other Term Loans" and will rank pari passu or junior in right of payment and security with the Term Loans and will, if pari passu in right of security with the Term Loans, benefit equally and ratably from the Liens under the Collateral Agreements. Each Class of Other Term Loans will have terms and conditions substantially identical to the Term Loans (other than with respect to pricing, amortization and maturity) and otherwise will be on terms and subject to conditions reasonably satisfactory to the Administrative Agent.
(b) The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the Other Term Loans to be made thereunder; provided that, without the prior written consent of Lenders holding a majority of the principal amount of the outstanding Loans, (i) the Other Term Loans shall mature no earlier than the Tranche B-1 Term Maturity Date and will have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Tranche B-1 Term Loans, (ii) if the interest rate spread applicable to any Other Term Loans (which, for this purpose, shall be deemed to include all upfront or similar fees or original issue discount and any pricing "floor" applicable to such Other Term Loans), but excluding any underwriting, arrangement, structuring or other fees payable in connection therewith that immediately prior are not generally shared with the Lenders (collectively, "Upfront Payments"), in each case, paid to the Incremental Lenders in respect of such Other Term Loans, exceeds the interest rate spread applicable to the Tranche B-1 Term Loans (taking into account the Upfront Payments paid to the Lenders in respect of the establishment of the Tranche B-1 Term Loans and any pricing "floor" applicable to the Tranche B-1 Term Loans) by more than 0.50%, then the interest rate spread applicable to the Tranche B-1 Term Loans shall be increased so that it equals (after taking into account Upfront Payments made in respect of the establishment of the Tranche B-1 Term Loans and any pricing "floor" applicable to the Tranche B-1 Term Loans) the interest rate spread applicable to the Other Term Loans less 0.50%. For purposes of the foregoing, any original issue discount associated with the Tranche B-1 Term Loans or any Other Term Loans will be converted to an interest rate spread equivalent by dividing the percentage amount of such original issue discount by the lesser of (A) the Weighted Average Life to Maturity of such Loans and (B) four.
(c) Each Incremental Assumption Agreement shall require the consent of only the Parent, the Borrowers, the Administrative Agent and the Incremental Lenders providing the applicable Other Term Loans, but, in each case, not the consents of any other Lenders. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and the other Loan Documents (other than the Intercreditor Agreement) shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Term Loans evidenced thereby, including the amount and final maturity thereof, any provisions relating to amortization and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of Sections 4.08, 10.06 and 10.12, the definition of "Required Lenders" and any other provisions of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Borrowers and the Administrative Agent shall deem necessary or advisable in connection with the establishment of such Other Term Loans. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers' consent (not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Assumption Agreement shall become effective under this Section 2.12 unless (i) on the date of such effectiveness and after giving effect to the making of any such increase Other Term Loans contemplated thereby the conditions set forth in the Revolving Commitments paragraphs (io) no Default or Event and (p) of Default Section 5.01 shall have occurred and be continuing and satisfied, (ii) each all fees owing in respect of the representations and warranties made by any Loan Party in or pursuant such Incremental Commitments to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree and all expenses in respect of such Incremental Commitments that the minimum borrowingBorrowers are required to reimburse have been paid in full and (iii) the Administrative Agent shall have received legal opinions, pro rata borrowing board resolutions and pro rata payment requirements contained elsewhere in this Agreement other closing certificates and documentation as it shall not apply reasonably request relating to such Other Term Loans, consistent with those delivered on the Effective Date pursuant to Section 5.01. The Administrative Agent shall promptly notify each Lender as to the transactions effected pursuant to this clause (c)effectiveness of each Incremental Assumption Agreement.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may may, by written notice to the Administrative Agent from time to time prior to time, request Incremental Term Loan Commitments or an increase in the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their U.S. Revolving Commitments or the Canadian Revolving Commitments in an amount not to exceed the greater of (eachI) $400,000,000 in the aggregate and (II) any other amount so long as the Senior Secured Leverage Ratio (provided that increased commitments under the U.S. Revolving Commitments or the Canadian Revolving Commitments shall be treated as drawn term loans for the purposes of this Section 2.6(a)) shall not be greater than 3.25 to 1.00 on the last day of the most recent fiscal quarter on a Pro Forma Basis after giving effect to such Incremental Term Loan Commitments or such increase in the U.S. Revolving Commitments or the Canadian Revolving Commitments, so long as on a “Commitment Increase”Pro Forma Basis the U.S. Borrower or the Canadian Borrower is in compliance with the covenant set forth in Section 8.1, as of the most recently completed period for which the financial statements required by Section 7.1(a) by executing and delivering (b) were required to the Administrative Agents an Increased Facility Activation Notice specifying be delivered and no Event of Default shall have occurred, be continuing or would result therefrom; provided that:
(i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to before and after giving effect to any the borrowing of such Incremental Term Loans on the date such Incremental Term Loans are borrowed or the increase in the such Canadian Revolving Commitments or U.S. Revolving Commitments on the date such Revolving Commitments become effective (i) no Default or Event of Default shall have occurred and be continuing and (iithe “Increased Amount Date”) each of the representations and warranties made by any Loan Party conditions set forth in or pursuant to the Loan Documents Section 6.2 shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and satisfied;
(ii) without in the consent case of the Administrative Agent, (x) each increase effected pursuant Incremental Term Loans, such Incremental Term Loans shall mature no earlier than, and the Weighted Average Life to this paragraph Maturity of such Incremental Term Loans shall not be in a minimum amount shorter than, the then remaining Weighted Average Life to Maturity of, the Term Loans under any then outstanding Facility at the time of at least $25,000,000 such refinancing and (y) no more increases in the Canadian Revolving Commitments or U.S. Revolving Commitments, such increased commitments shall have the same terms and conditions (other than five Increased Facility Closing Dates upfront fees) as any previously established Canadian Revolving Commitments or U.S. Revolving Commitments, as the case may be be, selected by the Borrowers Company;
(iii) in the case of Incremental Term Loans, all other terms applicable to such Incremental Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and, subject to clause (ii) above, amortization which shall be as agreed between the applicable Borrower and the Lenders providing such Incremental Term Loans) shall be substantially identical to, or less favorable to the Lenders providing such Incremental Term Loans than, those applicable to the then outstanding Term Loans except to the extent such covenants and other terms apply solely to any period after the Closing latest final maturity of the Term Loans and Revolving Commitments in effect on the Increased Amount Date immediately prior to the borrowing of such Incremental Term Loans;
(iv) in the case of Incremental Term Loans incurred prior to the date that is 12 months after the Restatement Effective Date. No Lender , if the Yield on any Incremental Term Loans exceeds the Yield on the U.S. Term B Loans by more than 50 basis points, then the Applicable Margins for the U.S. Term B Loans shall have be increased to the extent necessary so that the Yield on the U.S. Term B Loans is 50 basis points less than the Yield on such Incremental Term Loans;
(v) the Loan Parties and the Collateral Agent shall enter into such amendments to the Security Documents as may be requested by the Collateral Agent (which shall not require any obligation consent from any Lender) in order to participate ensure that the Incremental Term Lenders and/or Lenders providing increased Canadian Revolving Commitments or U.S. Revolving Commitments, as the case may be, are provided with the benefit of the applicable Security Documents and shall deliver such other documents, certificates and opinions of counsel in connection therewith as may be requested by the Collateral Agent; and
(vi) the Incremental Term Loans and extensions of credit pursuant to any increase described in this paragraph unless it agrees to do so the Canadian Revolving Commitments or U.S. Revolving Commitments shall rank pari passu in its sole discretionright of payment and security with the Term Loans and the Revolving Loans.
(b) Any additional bankThe Borrowers may approach any Lender or any other Person that would be a permitted Assignee pursuant to Section 11.6 (including consent, financial institution or other entity whichif applicable, with the consent of the Parent Borrower and from the Administrative Agent and each applicable Issuing Lender required by Section 11.6(b)(i)) to provide all or a portion of the Incremental Term Loans (which consent shall not be unreasonably withheld), elects to become a an “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Incremental Term Lender”) or increases in the Canadian Revolving Commitments or U.S. Revolving Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Term Loans, Canadian Revolving Commitments or U.S. Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Term Loan or additional Canadian Revolving Commitment or U.S. Revolving Commitment. Any Incremental Term Loans made on any Increased Amount Date shall become a Lender be designated an incremental series (an “Incremental Series”) of Incremental Term Loans for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement; provided that any Incremental Term Loans may, to the extent provided in the applicable Incremental Amendment, be designated as an increase in any previously established Incremental Series of Incremental Term Loans made to the Borrowers.
(c) Upon each Increased Facility Closing DateThe Incremental Term Loans and any increases in the Canadian Revolving Commitments or U.S. Revolving Commitments shall be established pursuant to an amendment to this Agreement among the Borrowers, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Incremental Term Lenders hereby agree that providing such Incremental Term Loans or such additional Canadian Revolving Commitments or U.S. Revolving Commitments (an “Incremental Amendment”) which shall be consistent with the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere provisions set forth in this Agreement paragraph (a) above (which shall not apply to require the transactions effected pursuant to this clause (cconsent of any other Lender). Each Incremental Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Cedar Fair L P)
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) Borrower may from time to time prior by written notice to the Initial Administrative Agent elect to request (i) incremental revolving credit commitments (the “Incremental Revolving Termination Date agree Credit Commitments”) for the purpose of increasing the aggregate Revolving Credit Commitments and/or (ii) incremental term loan commitments (the “Incremental Term Loan Commitments,” and together with the Incremental Revolving Credit Commitments, the “Incremental Commitments”) for the purpose of increasing the aggregate Term Loan Commitments; provided that such Lenders shall make, obtain or increase (1) the aggregate amount of their all Incremental Commitments shall not (as of any date of incurrence thereof) exceed $300,000,000 and (2) the aggregate amount of each increase in the Revolving Credit Commitments and/or Term Loan Commitments pursuant to this section shall not be less than $25,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify the date (each, a an “Commitment IncreaseIncreased Amount Date”) by executing and delivering on which the Borrower proposes that any Incremental Commitments shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agents Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Increased Facility Activation Notice specifying Incremental Commitment (any such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Revolving Credit Commitments and Revolving Credit Loans and Term Loan Commitments and Term Loans made pursuant to this Section shall be subject to the same terms applicable to the Revolving Credit Commitments and Revolving Credit Loans or Term Loan Commitments and Term Loans, as applicable, made on the Closing Date, except that the pricing, maturity and amortization terms applicable to any Term Loans made pursuant to this Section shall be as agreed among the Borrower, the Lenders providing such Term Loans and the Administrative Agent; provided, however, that (i) the amount maturity date of any such increase Term Loans shall be no earlier than the latest maturity date of the then-outstanding Term Loans and (ii) the applicable weighted average life of such Term Loans shall be no shorter than the then-remaining weighted average life of the then-outstanding Term Loans. Any Incremental Revolving Credit Commitment shall be available on a revolving basis from and after the date of the closing of such Incremental Revolving Credit Commitment until the Revolving Credit Maturity Date. Any Incremental Term Loan Commitment shall be available on a single draw basis on the date of the closing of such Incremental Term Loan Commitment. Any Incremental Commitment shall become effective as of the related Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments that:
(iA) no Default or Event of Default shall have occurred and be continuing exist on such Increased Amount Date before or after giving effect to (1) any Incremental Commitments and (ii2) each the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Term Loans and Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Commitments shall constitute Obligations of the representations Borrower, shall be secured and warranties made guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and conditions as other Term Loans (except as provided above), Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall pay any Loan Party in or and all costs required pursuant to the Loan Documents Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Commitment shall be true entitled to the same voting rights as the existing Lenders under the applicable Credit Facility, and correct any Extensions of Credit made in all material respects connection with each Incremental Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit of the same kind made hereunder;
(or, if such representations and warranties are qualified by materiality, in all respectsE) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date Incremental Commitments shall be true effected pursuant to one or more joinder agreements (each a “Joinder Agreement”) executed and correct delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in all material respects (orform and substance reasonably satisfactory to the parties thereto and may, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required any other Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement and the Maximum Permitted Increase Amountother Loan Documents as may be necessary or appropriate, and (ii) without in the consent opinion of the Administrative Agent, to effect the provisions of this Section 5.14);
(F) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of a Responsible Officer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 any Incremental Commitment and (y) no more the making of any Loans pursuant thereto (with any existing and/or then-undrawn Incremental Term Loan Commitment being deemed to be fully funded);
(G) the Administrative Agent and the Lenders shall have received from the Borrower a certificate of a Responsible Officer of the Borrower demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Consolidated Senior Secured Leverage Ratio of the Borrower is less than five Increased Facility Closing Dates may or equal to 3.00 to 1.00, as calculated on a Pro Forma Basis (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable), assuming that any then-undrawn pre-existing Term Loan Commitments and any Incremental Term Loan Commitments have been funded and giving effect to any drawings under Incremental Revolving Credit Commitments to be selected made on such date and the use of proceeds thereof;
(H) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by the Borrowers after board of directors (or equivalent governing body) of each Credit Party authorizing the Closing Date. No borrowing of Term Loans and/or Revolving Credit Loans, as applicable, and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent in connection with any such transaction; and
(I) each Lender or New Lender providing such Incremental Commitment shall have receive any obligation applicable flood insurance due diligence information and flood insurance compliance reasonably satisfactory to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionsuch Lender or New Lender.
(b) Any additional bank, financial institution or other entity which, with the consent The New Lenders shall be included in any determination of the Parent Borrower Required Lenders and the Administrative Agent (which consent shall New Lenders will not be unreasonably withheld), elects to become constitute a “Lender” separate voting class or separate tranche of Loans for any purposes under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each On any Increased Facility Closing DateAmount Date on which any Incremental Commitment becomes effective, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal subject to the outstanding Eurodollar Base Rate foregoing terms and conditions, each New Lender with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that an Incremental Commitment shall become a Lender hereunder with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Incremental Commitment.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Company may, by written notice to the General Administrative Agent from time to time prior to time, request that the Initial Revolving Termination Date agree total US/UK Commitments be increased; provided that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the aggregate amount of such increase and (ii) shall not exceed $150,000,000. Such notice shall set forth the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such amount of the requested increase in the Revolving US/UK Commitments (iwhich shall be in minimum increments of $10,000,000) no Default and the date on which such increase is requested to become effective (which shall be not less than 10 Business Days nor more than 60 days after the date of such notice and which, in any event, must be on or Event prior to the Termination Date), and shall offer each US/UK Lender the opportunity to increase its US/UK Commitment by its Pro Rata Percentage of Default the proposed increased amount. The General Administrative Agent shall promptly deliver notice of the Company’s requested increase in the US/UK Commitments to each US/UK Lender. Each US/UK Lender shall, by notice to the General Administrative Agent given not more than 10 days after the date of the General Administrative Agent’s notice, either agree to increase its US/UK Commitment by all or a portion of the offered amount (each Lender so agreeing being an “Increasing Lender”) or decline to increase its US/UK Commitment (and any Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its US/UK Commitment) (each Lender so declining or being deemed to have declined being a “Non-Increasing Lender”). In the event that, on the 10th day after the General Administrative Agent shall have occurred and be continuing and (ii) each of delivered such notice, the representations and warranties made by any Loan Party in or US/UK Lenders shall have agreed pursuant to the Loan Documents shall be true and correct preceding sentence to increase their US/UK Commitments by an aggregate amount less than the increase in all material respects the US/UK Commitments requested by the Company, the Company may arrange for one or more banks or other entities (orany such bank or other entity being called an “Augmenting Lender”), if such representations and warranties are qualified by materialitywhich may include any Lender, to extend US/UK Commitments or increase their existing US/UK Commitments in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate an aggregate amount equal to an earlier date shall be true and correct in all material respects (orthe unsubscribed amount; provided that, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding notwithstanding the foregoing, (i) no Person shall become a Lender and no Lender’s US/UK Commitment shall increase pursuant to this subsection 6.18 without the prior written consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the General Administrative Agent (which consent shall not be unreasonably withheld). The US/UK Borrowers and each Augmenting Lender shall execute all such documentation as the General Administrative Agent shall reasonably specify to evidence its US/UK Commitment and/or its status as a Lender hereunder. Any increase in the US/UK Commitments may be made in an amount which is less than the increase requested by the Company if the Company is unable to arrange for, elects or chooses not to become a “Lender” under arrange for, Augmenting Lenders.
(b) Each of the parties hereto hereby agrees that the General Administrative Agent may take any and all actions as may be reasonably necessary to ensure that, after giving effect to any increase in the US/UK Commitments pursuant to this Agreement subsection 6.18, the outstanding US/UK Loans (if any) are held by the US/UK Lenders in connection accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of the General Administrative Agent (i) by requiring the outstanding US/UK Loans to be prepaid with the proceeds of new US/UK Loans, (ii) by causing Non-Increasing Lenders to assign portions of their outstanding US/UK Loans to Increasing Lenders and Augmenting Lenders or (iii) by any transaction combination of the foregoing. Any prepayment or assignment described in Section 2.19(athis paragraph (b) shall execute a New Lender Supplement (eachbe subject to subsection 6.14, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution but otherwise without premium or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementpenalty.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no increase in the total US/UK Commitments shall become effective under this subsection 6.18 unless, (i) on the date of such increase, the Borrowers conditions set forth in subsection 8.2 shall (A) prepay be satisfied and the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal General Administrative Agent shall have received a certificate to that effect dated such prepayment (in date and executed by the case chief financial officer of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) Company and (B), (xii) the prepayment to, and borrowing from, any existing Lender General Administrative Agent shall be effected by book entry to the extent that any portion have received (with sufficient copies for each of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Increasing Lenders and New Lenders in accordance with Augmenting Lenders) such customary closing documentation as the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The General Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)have reasonably requested.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Reebok International LTD)
Incremental Commitments. (a) The Borrowers So long as the Incremental Term Loan Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.13A, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Amendment No. 2 Effective Date and prior to the date that is three months prior to the Term Loan Maturity Date, that one or more Lenders (and/or one or more other Persons that are Eligible Transferees and that will become Incremental Term Lenders as provided below) provide incremental term loans having the terms provided in the next sentence (the “Incremental Term Loans”), it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan as a result of any such request by the Borrower, (ii) any Lender (including New Lendersany Eligible Transferee that will become an Incremental Term Lender) may from time so provide an Incremental Term Loan without the consent of any other Lender, (iii) each provision of Incremental Term Loans on a given date pursuant to time prior this Section 2.13A shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee that will become an Incremental Term Lender)) of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Term Loans provided pursuant to this Section 2.13A shall not exceed the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase Incremental Aggregate Amount minus the amount of their Revolving any Incremental Commitments (each, a “Commitment Increase”) by executing and delivering made pursuant to Section 2.13(a). Incremental Term Loans shall be subject to the Administrative Agents an Increased Facility Activation Notice specifying following:
(i) terms and provisions of Incremental Term Loans shall be, except as otherwise set forth herein or in the amount Incremental Term Loan Amendment, identical to the Term Loans (it being understood that Incremental Term Loans may be a part of such increase and the Term Loans);
(ii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life of maturity of the existing Term Loans;
(iii) the maturity date of Incremental Term Loans shall not be earlier than the Term Loan Maturity Date;
(iv) the applicable Increased Facility Closing Datemargins for the Incremental Term Loans shall be determined by the Borrower and the Lenders of the Incremental Term Loans; provided that immediately prior in the event that the applicable margins for any Incremental Term Loans are greater than the Applicable Term Loan Margins, then the Applicable Term Loan Margins shall be increased to the extent necessary so that the applicable margins for the Incremental Term Loans are equal to the Applicable Term Loan Margins; provided, further, that in determining the Applicable Term Loan Margins and the applicable margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans or the Incremental Term Loans in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to the Arranger (or its affiliates) in connection with the Term Loans or to one or more arrangers (or their affiliates) of the Incremental Term Loans shall be excluded; and
(v) to the extent that the terms and provisions of Incremental Term Loans are not identical to the Loans (except to the extent permitted by clause (iii) or (iv) above) they shall be reasonably satisfactory to the Administrative Agent.
(b) At the time of the provision of Incremental Term Loans pursuant to this Section 2.13A, the Borrower, the Administrative Agent and each such Lender or other Eligible Transferee that agrees to provide an Incremental Term Loan (each, an “Incremental Term Lender”) shall execute and deliver to Administrative Agent an Incremental Term Loan Agreement, with the effectiveness of such Incremental Term Lender’s Incremental Term Loan to occur on the date set forth in such Incremental Term Loan Agreement (the “Incremental Term Loan Commitment Date”), which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Term Loan Requirements shall have been satisfied, (y) all other conditions set forth in this Section 2.13A shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Term Loan Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Agreement, and at such time, to the extent requested by any Incremental Term Lender, Term Notes shall be issued, at the expense of the Borrower, to such Incremental Term Lender in conformity with the requirements of Section 2.04A(a).
(c) The Incremental Term Loans shall constitute Loans under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents, except that the Incremental Term Loans may be subordinated in right of payment or the Liens securing the Incremental Term Loans may be subordinated, in each case, as set forth in the Incremental Term Loan Amendment. The Credit Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionIncremental Term Loans.
(bf) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent New Section 5A shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and added to the same extent Credit Agreement as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).follows:
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower shall have the right, at any time and any one or more Lenders (including New Lenders) may from time to time prior after the Restatement Effective Date by written notice to and in consultation with the Initial Administrative Agent, to request (i) an increase in the aggregate Commitments (each such requested increase, a “Revolving Termination Date agree that Commitment Increase”), and/or (ii) one or more term loan commitments (each such requested term loan commitment, a “Term Loan Commitment” and, together with any Revolving Commitment Increase, the “Incremental Commitments”) to make one or more term loans (each a “Term Loan”) by having one or more existing Lenders shall make, obtain or increase the amount of their Revolving respective Commitments then in effect and/or provide a Term Loan Commitment (each, an “Increasing Lender”), by adding as a Lender with a new Commitment and/or Term Loan Commitment hereunder one or more Persons that are not already Lenders (each, an “Commitment IncreaseAdditional Lender” and, together with each Increasing Lender, the “Incremental Lenders”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date), or a combination thereof; provided that (A) any such request for an Incremental Commitment shall be in a minimum amount of $25,000,000, (B) immediately prior to and after giving effect to any such increase in Incremental Commitment, (y) the Revolving aggregate Commitments plus Incremental Commitments shall not exceed $350,000,000 and (iz) the aggregate of all Incremental Commitments effected shall not exceed $100,000,000, (C) no Default or Event of Default shall have occurred and be continuing on the applicable Incremental Commitment Effective Date (as hereinafter defined) or shall result from any Incremental Commitment, (D) immediately after giving effect to any Incremental Commitment (including any Borrowings in connection therewith and (ii) each the application of the representations and warranties made by any Loan Party in or pursuant to proceeds thereof) the Loan Documents Borrower shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, compliance with the financial covenants contained in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountARTICLE VII, and (iiE) without the consent Borrower shall give the existing Lenders the right of first refusal for participating in any such Incremental Commitment by providing such notice to the Administrative Agent ten (10) Business Days before making a request to any Person that is not already a Lender. An existing Lender shall have priority over Additional Lenders to participate in such requested Incremental Commitment if it provides written notice of its election to participate within ten (10) Business Days of the Administrative Agent, (x) each increase effected pursuant to this paragraph ’s receipt of such notice. Such notice from the Borrower shall be in a minimum specify the requested amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateIncremental Commitment. No Lender shall have any obligation to participate become an Increasing Lender. Any fees paid by the Borrower for an Incremental Commitment to an Incremental Lender, the Administrative Agent or ▇▇▇▇▇ Fargo, as Arranger, shall be for their own account and shall be in any increase described an amount, if any, mutually agreed upon by each such party and the Borrower, in each party’s sole discretion. Nothing contained in this paragraph unless it agrees Section 2.20 shall be construed to do so in its sole discretionobligate the Borrower to pay any fee for an Incremental Commitment to an Incremental Lender, the Administrative Agent or either Arranger.
(b) Any additional bankRevolving Commitment Increases, financial institution or if any, shall have the same terms (other entity which, with than upfront fees) as the consent of the Parent Borrower existing Commitments and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described effected as set forth in Section 2.19(a) shall execute a New Lender Supplement (each2.20(f). Term Loan Commitments, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate shall have terms and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner conditions acceptable to the Administrative Agent, so thatthe Incremental Lenders making such Term Loan Commitments and the Borrower (such terms and conditions to be set forth in an amendment to this Agreement effective as of the Incremental Commitment Effective Date), after giving effect theretoprovided that the Term Loans made pursuant to such Term Loan Commitments (i) shall not mature earlier than the Maturity Date, and (ii) will constitute Obligations of the Borrower on a pari passu basis with any Revolving Loans Loans
(c) Each Additional Lender must be approved in writing by the Administrative Agent and the Issuing Lender. The Borrower and each Additional Lender shall execute a joinder agreement, and the Borrower and each Lender shall execute all such other documentation as the Administrative Agent and the Borrower may reasonably require including without limitation the documentation for the amendment referred to in Section 2.20(e)(i)(A), all in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to evidence the Commitment adjustments referred to in Section 2.20(f).
(d) If Incremental Commitments are held ratably by such existing Lenders and New Lenders provided in accordance with this Section 2.20, the respective Revolving Commitments Borrower (in consultation with the Administrative Agent) and each Incremental Lender shall agree upon the effective date (the “Incremental Commitment Effective Date,” which shall be a Business Day not less than thirty (30) days prior to the Termination Date). The Administrative Agent shall promptly notify the Lenders of such increase and the Incremental Commitment Effective Date. For clarity, no Lender other than an Incremental Lender must execute any joinder or amendment in connection with an Incremental Commitment.
(e) Notwithstanding anything set forth in this Section 2.20 to the contrary, the Borrower shall not incur any Revolving Loans or Term Loans pursuant to any Incremental Commitment (and no Incremental Commitment shall be effective) unless the conditions set forth in Section 2.20(a) as well as the following conditions precedent are satisfied on the applicable Incremental Commitment Effective Date:
(i) The Administrative Agent shall have received the following, each dated the Incremental Commitment Effective Date and in form and substance reasonably satisfactory to the Administrative Agent:
(A) an amendment to this Agreement signed by the Incremental Lenders setting forth the terms and conditions of the Term Loan Commitments, if any, and the reallocation of Commitments and the allocation of Term Loan Commitments, as applicable, referred to in Section 2.20(f), together with all other documentation required by the Administrative Agent pursuant to Section 2.20(c);
(B) an instrument, duly executed by the Borrower and each other Subsidiary Guarantor, if any, acknowledging and reaffirming its obligations under the Subsidiary Guaranty, and the other Credit Documents to which it is a party;
(C) a certificate of the secretary or an assistant secretary of the Borrower and each Subsidiary Guarantor, certifying to and attaching the resolutions adopted by the board of directors (or similar governing body) of such party approving or consenting to such Incremental Commitment;
(D) a certificate of a Financial Officer of the Borrower, certifying that (x) all representations and warranties of the Borrower and the Subsidiary Guarantors contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Incremental Commitment Effective Date (except to the extent such representation and warranty is qualified by materiality, in which case, such representation and warranty shall be true and correct in all respects or except to the extent that such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct as of such date), (y) immediately after giving effect to such Incremental Commitment Increase) (including any Borrowings in connection therewith and the application of the proceeds thereof), the Borrower is in compliance with the financial covenants contained in ARTICLE VII, and (Cz) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to such Incremental Commitment (including any Borrowings in connection therewith and the application of the proceeds thereof); and
(E) an opinion or opinions of counsel for the Borrower and the Subsidiary Guarantors, addressed to the Administrative Agent and the Lenders, together with such other documents, instruments and certificates as the Administrative Agent shall have reasonably requested.
(f) For Revolving Commitment Increases, on the Incremental Commitment Effective Date, (i) the aggregate principal outstanding amount of the Revolving Loans (the “Initial Loans”) immediately prior to giving effect to the Incremental Commitment shall be deemed to be repaid, (ii) immediately after the effectiveness of the Incremental Commitment, the Borrower shall be deemed to have made new Borrowings of Revolving Loans (the “Subsequent Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Initial Loans and of the Types and for the Interest Periods specified in a Notice of Borrowing delivered to the Administrative Agent in accordance with Section 2.2(b), (iii) each Lender shall pay to the Lenders Administrative Agent in immediately available funds an amount equal to the amountsdifference, if anypositive, payable under Section 2.15 as a result between (y) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of any the Subsequent Borrowings and (z) such prepayment. Concurrently therewithLender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans, (iv) after the Administrative Agent receives the funds specified in clause (iii) above, the Administrative Agent shall pay to each Lender the portion of such funds equal to the difference, if positive, between (y) such Lender’s pro rata percentage (calculated without giving effect to the Incremental Commitment) of the Initial Loans and (z) such Lender’s pro rata percentage (calculated after giving effect to the Incremental Commitment) of the amount of the Subsequent Borrowings, (v) the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held hold the Subsequent Borrowings ratably in accordance with their Revolving respective Commitments as so increased(calculated after giving effect to the Incremental Commitment), (vi) the Borrower shall pay all accrued but unpaid interest on the Initial Loans to the Lenders entitled thereto, and (vii) Schedule 1.1 shall be amended to reflect the Commitments of all Lenders after giving effect to the Incremental Commitment. The Administrative Agent and deemed payments made pursuant to clause (i) above in respect of each LIBOR Loan shall be subject to indemnification by the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply Borrower pursuant to the transactions effected pursuant to this clause (c)provisions of Section 2.18 if the Incremental Commitment Effective Date occurs other than on the last day of the Interest Period relating thereto.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Incremental Commitments. (a) The Borrowers Borrower shall have the right, in consultation and coordination with, Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Amendment No. 3 Effective Date and prior to the date which is three months prior to the Revolving Loan Maturity Date, that one or more Lenders (including New Lendersand/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) may from time to time prior to the Initial Revolving Termination Date agree provide Incremental Commitments, it being understood and agreed, however, that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry obligated to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a provide an Incremental Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewithrequest by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each provision of Incremental Commitments on a given date pursuant to this Section 2.14 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a lender)) of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.14 shall not exceed the Maximum Incremental Commitment Amount.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.14, the Lenders Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Appendix A shall be deemed modified to have adjusted their participation interests in any outstanding Letters reflect the revised Revolving Loan Commitments of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent the affected Lenders and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply (iii) to the transactions effected extent requested by any Incremental Lender, Revolving Loan Notes will be issued, at the expense of the Borrower, to such Incremental Lender in conformity with the requirements of Section 2.05.
(c) At the time of any provision of Incremental Commitments pursuant to this clause Section 2.14, the Borrower shall, in coordination with Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (cincluding the Incremental Lenders), in each case to the extent necessary so that all of the Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Commitment pursuant to this Section 2.14) and with the Borrower being obligated to pay to the respective Lenders any costs of the type referred to in Section 2.10 in connection with any such repayment and/or incurrence.
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)
Incremental Commitments. The Company may, upon five (a5) The Borrowers and any Business Days’ notice to the Administrative Agent, increase the Revolving Loan Commitment amount by adding one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain lenders or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in increasing the Revolving Commitments (i) no Default or Event Loan Commitment of Default shall have occurred and be continuing and (ii) each of a Lender, determined by the representations and warranties made by any Loan Party Company in or pursuant its sole discretion, subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, Swingline Lender and Issuing Banks (x) each increase effected pursuant such consent not to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects which lender or lenders are willing to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement commit to such increase (eacheach such lender, a “New Lender SupplementLender,” and such commitment, the “Incremental Commitment”); provided, substantially in however, that (i) the form Company may not elect any Incremental Commitment after the occurrence and during the continuance of Exhibit Han Event of Default, whereupon such bankincluding, financial institution or other entity without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (a “New Lender”ii) shall become a Lender for all purposes and to the same extent as if originally a party hereto and each Incremental Commitment shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to such prepayment all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed $3,750,000,000 and (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(siv) ending on the date(s) effective date of any then outstanding Interest Period(s))the Incremental Commitment, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)each New Lender will, (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent applicable, purchase at par that any portion of outstanding Loans of the amount prepaid to other Lenders or take such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to other actions as the Administrative Agent, so that, after giving effect thereto, Agent may determine to be necessary to cause the Revolving Loans are and funded and unfunded participations in Letters of Credit and Swingline Loans to be held ratably pro rata by such existing Lenders and New the Lenders in accordance with the respective Revolving Commitments Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and delivering such Lenders (after giving effect to such Commitment Increase) and (C) pay counterpart to the Lenders Administrative Agent. Over the amounts, if any, payable under Section 2.15 as a result term of any such prepayment. Concurrently therewith, the Lenders Agreement the Company shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their increase the Revolving Loan Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause no more than four (c4).
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may Borrower may, from time to time prior time, by written notice to the Initial Revolving Termination Date agree that such Lenders shall makeLender, obtain or increase the amount of their request additional Revolving Commitments (eachcollectively, a “Commitment IncreaseIncremental Commitments”) by executing and delivering to ), from the Administrative Agents Lender (in the sole discretion of the Lender), in an Increased Facility Activation Notice specifying (i) the aggregate principal amount of such increase and (ii) the applicable Increased Facility Closing Dateup to $10,000,000; provided that at the time of the incurrence of such Incremental Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (i) assuming the full utilization thereof), no Default or Event of Default shall have occurred and be continuing and (ii) each of or would result therefrom; provided, further, that the representations and warranties made by any Loan Party in or pursuant to the Loan Documents Borrower may make only 1 such request. Such notice shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, set forth (i) without the consent amount of the Required Lenders, the aggregate additional Revolving Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount$5,000,000), and (ii) without the consent of the Administrative Agent, date on which such additional Revolving Commitments are requested to become effective (x) each increase effected pursuant to this paragraph which shall not be in a minimum amount of at least $25,000,000 and (y) no less than 15 Business Days nor more than five Increased Facility Closing Dates may be selected 60 calendar days after the date of such notice, unless otherwise agreed to by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionLender).
(b) The Borrower shall execute and deliver to the Lender such documentation as the Lender shall reasonably specify to evidence the Incremental Commitment of the Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Commitment, this Credit Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments evidenced thereby. Any additional bank, financial institution or other entity which, such deemed amendment may be memorialized in writing by the Lender with the Borrower’s consent of the Parent Borrower and the Administrative Agent (which consent shall not to be unreasonably withheldwithheld or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon The terms of each Increased Facility Closing Date, additional Revolving Commitment shall be reasonably satisfactory to the Borrowers Lender and in any event:
(d) (i) shall rank pari passu in right of payment and of security with the existing Revolving Loans;
(Ae) prepay the outstanding (ii) 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.
(if anyf) in fullNo additional Revolving Commitments shall become effective under this Section 2.11 unless, on the date of such effectiveness, (Bi) simultaneously borrow new Revolving Loans hereunder the conditions set forth in an amount equal to such prepayment paragraphs (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (Aa) and (B), b) of Section 4.2 shall be satisfied as if it was a borrowing date and the Lender shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; and (xii) the prepayment to, and borrowing from, any existing Lender shall be effected have received closing certificates, opinions of counsel and other customary documentation requested by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Lender.
Appears in 1 contract
Sources: Credit Agreement (Backblaze, Inc.)
Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase” and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the “Fixed Incremental Amount”) plus (B) an unlimited amount (the “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loans (assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Revolving Commitment Increase not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the actual amount of cash paid) of the Initial Term Loans and the Incremental Term Loans and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (A), (B), and (C) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (I) the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Initial Revolving Termination Date agree Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such Lenders shall maketime on a pro forma basis, obtain or increase at any time subsequent to the amount incurrence of their Revolving Commitments (each, a “Commitment Increase”) such Incremental Credit Facility by executing and delivering written notice to the Administrative Agents an Increased Facility Activation Notice specifying Agent on such date. (i) for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier dateIndebtedness so redesignated). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).NAI-1537241654v2
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrowers and any Borrower may on one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall makeoccasions, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering written notice to the Administrative Agents Agent (which shall promptly deliver a copy thereof to each Lender), request the establishment of Incremental Commitments, provided that the aggregate amount of all the Incremental Commitments established after the Restatement Effective Date under this Section 2.20 shall not exceed $20,000,000 (it being understood, for the avoidance of doubt, that the additional Commitments established on the Restatement Effective Date are not Incremental Commitments and the Second Restatement Agreement is not an Increased Incremental Facility Activation Notice specifying Agreement). Each such notice shall specify (i) the amount of date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 15 days after the date on which such increase notice is delivered to the Administrative Agent, and (ii) the applicable Increased Facility Closing Dateamount of the Incremental Commitments being requested, and shall offer to each Non-Defaulting Lender the opportunity to provide a portion of the amount of the Incremental Commitments being requested equal to its Applicable Percentage (calculated disregarding the Commitments of Defaulting Lenders, if any) thereof. Each Lender shall, by notice to the Borrower and the Administrative Agent given not more than seven days after the date on which the Administrative Agent shall have delivered the Borrower’s notice, either agree to provide all or a portion of its Applicable Percentage (as so calculated) of the amount of the Incremental Commitments being requested or decline to do so (and any Lender that does not deliver such notice within such period of seven days shall be deemed to have declined to do so). If, on the seventh day after the Administrative Agent shall have delivered the Borrower’s notice, the Lenders shall have agreed pursuant to the preceding sentence to provide Incremental Commitments in an aggregate amount less than the amount of the Incremental Commitments being requested, the Borrower may arrange for one or more banks or other financial institutions, which may include any Lender, to provide Incremental Commitments in an aggregate amount equal to the amount of such deficiency; provided that immediately prior any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and after giving effect must be reasonably acceptable to the Administrative Agent and each Issuing Bank.
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Loans and other extensions of credit made hereunder, it being agreed, however, that in connection with the effectiveness of any Incremental Commitment, subject to the consent of the Borrower, this Agreement may be modified to increase (but not decrease) the Applicable Rate and fees payable for the account of the Lenders pursuant to Section 2.11, so long as such increase in is effective for the Revolving benefit of all the Lenders hereunder on equal terms.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) the Borrower shall have delivered to the Administrative Agent a certificate of the chief executive officer or the chief financial officer of the Borrower, dated as of the date of effectiveness thereof, certifying that the representations and warranties of each Loan Party set forth in the Loan Documents are true and correct (A) in the case of the representations and warranties made by any Loan Party in or pursuant qualified as to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects and (B) otherwise, in all material respects) , in each case on and as of such date as if made date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall have been so true and correct on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier prior date). Notwithstanding the foregoing, (iiii) the Borrower shall make any payments required to be made pursuant to Section 2.15 in connection with such Incremental Commitments and the related transactions under this Section 2.20 and (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of the Required Lendersany Lender, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant effect such amendments to this paragraph shall not exceed Agreement and the Maximum Permitted Increase Amountother Loan Documents as may be necessary or appropriate, and (ii) without in the consent opinion of the Administrative Agent, to give effect to the provisions of this Section (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in including any increase described referred to in this paragraph unless it agrees to do so in its sole discretion(b) above).
(bd) Any additional bankUpon the effectiveness of an Incremental Commitment of any Incremental Lender, financial institution or other entity which(i) such Incremental Lender, with the consent of the Parent Borrower and the Administrative Agent (which consent if not already a Lender, shall not be unreasonably withheld), elects deemed to become be a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) hereunder, and henceforth shall execute a New Lender Supplement (eachbe entitled to all the rights of, a “New Lender Supplement”)and benefits accruing to, substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto Lenders hereunder and shall be bound by all agreements, acknowledgements and entitled other obligations of Lenders hereunder and under the other Loan Documents, (ii) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the benefits definition of this Agreementthe term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposure of the Incremental Lender holding such Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto.
(ce) Upon On the date of effectiveness of any Incremental Commitments, each Increased Facility Closing DateLender shall assign to each Incremental Lender holding such Incremental Commitment, and each such Incremental Lender shall purchase from each Lender, at the Borrowers shall principal amount thereof (A) prepay the outstanding Revolving Loans (if any) in fulltogether with accrued interest), (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (interests in the case Loans and participations in Letters of Eurodollar Loans, with Eurodollar Base Rates equal to the Credit and Protective Advances outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), such date as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, necessary in a manner acceptable to the Administrative Agent, so order that, after giving effect theretoto all such assignments and purchases, the Revolving such Loans are held ratably by such existing Lenders and New Lenders participations in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that and Protective Advances will be held by all the Lenders (including such interests are held Incremental Lenders) ratably in accordance with their Revolving Commitments as so increasedApplicable Percentages after giving effect to the effectiveness of such Incremental Commitment. The Administrative Agent and shall notify the Lenders hereby agree that promptly of the minimum borrowingeffectiveness of any Incremental Commitments, pro rata borrowing advising the Lenders of the details thereof and pro rata payment requirements contained elsewhere in this Agreement shall not apply of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the transactions effected be made pursuant to this clause (c)paragraph.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) Borrower may from time to time prior time, on one or more occasions after the Closing Date, by written notice to the Initial Revolving Termination Date agree that such Lenders shall makeAdministrative Agent (an “Incremental Request”), obtain request (i) one or increase the amount of their Revolving Commitments more new commitments (each, an “Incremental Term Facility”) which may be in the same Facility as any outstanding Term Loans of an existing Class of Term Loans (a “Commitment Term Loan Increase”) by executing and delivering to or a new Class of Term Loans (collectively with any Term Loan Increase, the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and “Incremental Term Commitments”), (ii) the applicable Increased Facility Closing Date; establishment of commitments under one or more new revolving credit facilities that are not super senior in priority (each, an “Incremental Revolving Facility”), (iii) the establishment of commitments under a super priority revolving credit facility (the “Incremental Super Priority Revolving Facility” and collectively with any Incremental Revolving Facility, each, an “Incremental Senior Revolving Facility”, and collectively with any Incremental Term Facility, an “Incremental Facility”), provided that immediately prior to and after giving effect to any such increase the Incremental Super Priority Revolving Facility does not exceed in the aggregate $25,000,000 or (iv) one or more increases in the amount of commitments under any Incremental Senior Revolving Commitments Facility (i) no Default or Event an “Incremental Revolving Commitment Increase”, collectively with any Incremental Senior Revolving Facility, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively, with any Incremental Term Commitments, the “Incremental Commitments”), provided that any increase under the Incremental Super Priority Revolving Facility shall not result in the Incremental Super Priority Revolving Facility exceeding $25,000,000 in the aggregate, whereupon the Administrative Agent shall promptly deliver a copy of Default shall have occurred and be continuing and (ii) such Incremental Request to each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
Appears in 1 contract
Incremental Commitments. (a) The Borrowers At any time and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Latest Maturity Date, the Company may, by written notice to the Administrative Agent (which the Administrative Agent shall promptly furnish to each Lender), request that one or more Persons (which may include the then-existing Lenders) (A) offer to increase their Revolving Termination Date Credit Commitments or to make additional Revolving Credit Commitments (if they are not already Lenders) (such increased and/or additional Revolving Credit Commitments being a “Incremental Revolving Credit Commitment”) or (B) enter into one or more tranches of term loans (such additional term loans being an “Incremental Term Loan” and together with any Incremental Revolving Credit Commitments, a “Incremental Commitments”) under this paragraph (a), it being understood that (x) if such offer is to be made by a Person that is not already a Lender, the Administrative Agent shall have consented to such Person being a Lender hereunder to the extent such consent would be required pursuant to Section 10.04(b) in the event of an assignment to such Person (such consent not to be unreasonably withheld) and (y) the Company may agree that such Lenders shall make, obtain or increase to accept less than the amount of any Incremental Commitment so requested; provided that the minimum aggregate principal amount accepted shall equal the lesser of (i) (x) $10,000,000 if such Incremental Commitment is denominated in U.S. Dollars or (y) €10,000,000 if such Incremental Commitment is denominated in Euro or (ii) the offered Incremental Commitment. The minimum aggregate principal amount of any Incremental Commitment shall be $10,000,000 or €10,000,000, as applicable, (or such lesser amount as may be agreed by the Administrative Agent). In no event shall the aggregate amount of all Incremental Commitments pursuant to this paragraph (a) (i) exceed the Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Credit Commitments are established or (ii) cause the failure of the Company to comply with the limitation on incurrence of Indebtedness by Foreign Borrowers set forth in Section 6.01(a). The Company may arrange for one or more banks or other financial institutions, which may include any Lender, to extend Revolving Credit Commitments, increase their existing Revolving Credit Commitments or provide Incremental Term Loans in an aggregate amount equal to the amount of the Incremental Commitment. In the event that one or more of such Persons offer to increase or enter into such Revolving Credit Commitments, and such Persons, the Company, any other applicable Borrower and the Administrative Agent agree as to the amount of such Revolving Credit Commitments to be allocated to the respective Persons making such offers and the fees (if any) to be payable by the Company in connection therewith, the Company, any other applicable Borrower, such Persons, the Administrative Agent and any other Applicable Agent shall execute and deliver an Incremental Assumption Agreement. Incremental Term Loans may be made hereunder pursuant to an amendment, restatement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender participating in such tranche, each Person joining this Agreement as Lender by participation in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Company and the Administrative Agent, to effect the provisions of this Section 2.09.
(b) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (each, a “or in the Revolving Credit Commitment Increase”of any Lender) by executing and delivering to or tranche of Incremental Term Loans shall become effective under this Section 2.09 unless on the Administrative Agents an Increased Facility Activation Notice specifying proposed date of the effectiveness of such Incremental Commitment (i) the amount Administrative Agent shall have received a certificate dated such date and executed by a Financial Officer of the Company that the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall have been satisfied or waived by the Required Lenders; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition, to the extent the Incremental Term Loan Lenders participating in such tranche of Incremental Term Loans agree, (x) the condition set forth in Section 4.02(b) shall be (I) tested at the time of the execution of the acquisition agreement related to such Limited Condition Acquisition (provided, that such Incremental Term Loan 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) and (II) tested at funding of such increase Incremental Term Loans only with respect to those Events of Default under clause (a), (b), (h) or (i) of Article VII and (y) the condition set forth in Section 4.02(a) shall be limited to the accuracy of 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 Company 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 (it being understood that of the representations and warranties under the Loan Documents, only the Specified Representations shall be required to be accurate as a condition to the funding of Incremental Term Loans being used to finance a Limited Condition Acquisition, all of the representations and warranties under the Loan Documents shall nonetheless be made) and (ii) the applicable Increased Facility Closing Date; provided that immediately prior Administrative Agent shall have received documents from the Company consistent with those delivered on the Effective Date as to the organizational power and authority of the Borrowers to borrow hereunder after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date)Incremental Commitment. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described Nothing contained in this paragraph unless it agrees Section 2.09 shall constitute, or otherwise be deemed to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (eachbe, a “New commitment on the part of any Lender Supplement”)to increase its Revolving Credit Commitment hereunder, substantially in the form of Exhibit Hor provide Incremental Term Loans, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreementat any time.
(c) Upon The applicable Borrower and each Increased Facility Closing DateIncremental Term Loan Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Credit Commitments; provided, that:
(i) any (v) commitments to make additional Initial U.S. Term B Loans shall have the Borrowers same terms as the Initial U.S. Term B Loans, and shall (A) prepay form part of the outstanding Revolving Loans (if any) in fullsame Class of Initial U.S. Term B Loans, (Bw) simultaneously borrow new Revolving commitments to make additional Initial Euro Term B Loans hereunder in an amount equal to such prepayment (in shall have the case of Eurodollar same terms as the Initial Euro Term B Loans, with Eurodollar Base Rates equal to and shall form part of the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) same Class of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)Initial Euro Term B Loans, (x) commitments to make additional Initial Term A Loans shall have the prepayment tosame terms as the Initial Term A Loans, and borrowing fromshall form part of the same Class of Initial Term A Loans, any existing Lender (y) commitments to Term Loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”) shall be effected by book entry subject to compliance with clauses (ii) through (viii) below and (z) Incremental Revolving Credit Commitments shall have the same terms as the then outstanding Class of Revolving Credit Commitments (or, if more than one Class of Revolving Credit Commitments is then outstanding, the Revolving Credit Commitments with the then latest Revolving Facility Maturity Date) and shall require no scheduled amortization or mandatory commitment reduction prior to the extent that any portion Latest Maturity Date of the amount prepaid Revolving Credit Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.09 shall be secured by Liens that rank equal in priority with the Liens securing the Initial Term Loans, (iii) (x) the final maturity date of any such Lender will Other Incremental Term A Loans shall be subsequently borrowed from no earlier than the Latest Maturity Date applicable to Term A Loans in effect at the date of incurrence of such Lender Other Incremental Term A Loans, and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Company and the Incremental Term Loan Lenders in their sole discretion), shall have the same terms as the Initial Term A Loans or such other terms as shall be reasonably satisfactory to the Administrative Agent and (y) the existing Lenders final maturity date of any such Other Incremental Term B Loans shall be no earlier than the Latest Maturity Date applicable to Term B Loans in effect at the date of incurrence of such Other Incremental Term B Loans and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (including existing Lenders providing a Commitment Increasewhich shall, if applicable) subject to the other clauses of this proviso, be determined by the Company and the New Incremental Term Loan Lenders in their sole discretion), shall make and receive payments among themselveshave the same terms as the Initial U.S. Term B Loans or the Initial Euro Term B Loans, in a manner acceptable as applicable, or such other terms as shall be reasonably satisfactory to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).,
Appears in 1 contract
Sources: Credit Agreement (Schulman a Inc)
Incremental Commitments. (a) The Borrowers Borrower and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents Agent an Increased Facility Activation Notice specifying (i) the amount of such increase incremental Commitments and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (iA) no Default or Event of Default exists or shall exist immediately before or after giving effect to such incremental Commitments; (B) the Borrower shall be in compliance with the then-applicable financial covenants set forth in Section 7.1, computed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements shall have occurred been (or shall have been required to be) delivered pursuant to Section 6.1 (and be continuing and assuming any undrawn Commitments are fully drawn); (iiC) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on the applicable Increased Facility Closing Date immediately prior to, and after giving effect to, such incremental Commitments; (or, if such representations and warranties are qualified by materiality, in all respectsD) on and as the terms of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date the incremental Commitments shall be true identical to the terms of the then-existing Commitments (including the maturity date in respect thereof); and correct (E) in all material respects (orconnection with any such increase, if the Borrower shall provide the Administrative Agent with such representations certificates and warranties are qualified by materiality, in all respects) legal opinions as of such earlier date)the Administrative Agent may reasonably request. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Restatement Effective Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, $100,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 10,000,000 and (y) no more than five three Increased Facility Closing Dates may be selected by the Borrowers Borrower after the Closing Restatement Effective Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.. 36
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a2.23(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit HE, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrowers Borrower shall (A) prepay borrow Loans under the outstanding Revolving Loans (if any) relevant increased Commitments from each Lender participating in full, (B) simultaneously borrow new Revolving Loans hereunder the relevant increase in an amount equal determined by reference to such prepayment the amount of each Type of Loan (and, in the case of Eurodollar Loans, with of each Eurodollar Base Rates equal Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Rate applicable to any Eurodollar Loan borrowed pursuant to the outstanding preceding sentence shall equal the Eurodollar Base Rate and with Interest Period(sthen applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche.
(d) ending Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on the date(s) of any then outstanding Interest Period(s))each Increased Facility Closing Date, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender this Agreement shall be effected by book entry amended to the extent that any portion (but only to the extent) necessary to reflect the existence of the amount prepaid incremental Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicableunreasonably withheld) and the New Lenders shall make and receive payments among themselves, in a manner acceptable furnished to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)other parties hereto.
Appears in 1 contract
Sources: Credit Agreement (World Wrestling Entertainmentinc)
Incremental Commitments. At any time following the earlier of (ax) The Borrowers completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and any one or more Lenders (including New Lendersy) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may from time to time prior by written notice to the Initial Administrative Agent elect to request an increase to the existing Revolving Termination Date agree Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed $250.0 million, or, in each case, a lesser amount in integral multiples of $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Commitment IncreaseIncremental Term Loans”) by executing and delivering to the Administrative Agents an shall be made on such Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and be continuing and Incremental Term Loans; (ii) each of the representations and warranties made by any Loan Party contained in or pursuant to Article III and the other Loan Documents shall be true and correct in all material respects (oron and as of the Increased Amount Date, if except to the extent that such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate specifically refer to an earlier date date, in which case they shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding ; (iii) the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Borrower and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph its Restricted Subsidiaries shall be in compliance, on a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (Pro Forma Basis after giving effect to such Commitment IncreaseIncremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (Civ) pay such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Lenders Administrative Agent and subject to the amountsrequirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; and (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans. Each of the parties hereto hereby agrees that, if any, payable under Section 2.15 as a result upon the effectiveness of any such prepayment. Concurrently therewithjoinder agreements in connection with any Incremental Commitments as described in the preceding sentence, the Lenders this Agreement shall be deemed amended to have adjusted their participation interests in any outstanding Letters the extent (but only to the extent) necessary to reflect the existence and terms of Credit so that such interests are held ratably in accordance with their Revolving the Incremental Commitments as so increased. The and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Borrower may revise this Agreement shall not apply to evidence such amendments without the transactions effected pursuant to this clause (c)consent of any Lender.
Appears in 1 contract
Incremental Commitments. (a) The Borrowers Borrower shall have the right at any time or from time to time on or after the Incremental Availability Date, upon written notice to and consent of the Administrative Agent, and in coordination with the Administrative Agent as to all matters set forth in this Section 2.13, but without requiring the consent of any of the Lenders, to request that one or more Lenders (including New and/or one or more other Eligible Transferees which will become Lenders) provide Incremental Commitments pursuant to (x) one or more new Tranches of Incremental Commitments or (y) an increase in the amount of Incremental Commitments under one or more existing Tranches on the same terms as such existing Tranches (the “Incremental Commitment Increase” and, together with any additional Tranche of Incremental Commitments, the “Incremental Facility”), provided that:
(i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Borrower;
(ii) any Lender (including any Eligible Transferees which will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender;
(iii) the provision of Incremental Commitments pursuant to this Section 2.13 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Transferees who will become Lenders pursuant thereto) of not less than $20,000,000 (or such lesser amount as agreed to by the Borrower) and shall be in integral multiples of $5,000,000;
(iv) such Incremental Commitments shall not exceed an aggregate principal amount of $350,000,000;
(v) the Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement;
(vi) the Borrower shall not obtain Incremental Commitment Increases or new Tranches of Incremental Commitments pursuant to this Section 2.13 more than three times and each notice thereof from time the Borrower shall set forth the requested amount and proposed terms of the relevant Incremental Commitment Increase or new Tranche of Incremental Commitments;
(vii) the upfront fees payable to time each Incremental Lender in respect of each Incremental Commitment shall be separately agreed to by the Borrower and each such Incremental Lender; and
(viii) the Incremental Loans incurred under any Tranche and the Letters of Credit issued pursuant to an Incremental Commitment under such Tranche shall constitute Loans and Letters of Credit for all purposes of this Agreement and the other Credit Documents and as a consequence all such Incremental Loans and Letters of Credit (and all interest, fees and other amounts payable thereon) shall be Obligations under this Agreement and the other applicable Credit Documents and shall be secured by the Security Documents, and receive the benefit of the Guaranties, on a pari passu basis with all other Obligations secured by the Security Documents and receiving the benefit of the Guaranties.
(b) On or prior to the Initial Revolving Termination Date agree that such Lenders Incremental Availability Date, at the time of any provision of Incremental Commitments under any Tranche pursuant to this Section 2.13, the following conditions shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying have been satisfied:
(i) the amount Borrower and each such Lender or other Eligible Transferee (each an “Incremental Lender”) which agrees to provide an Incremental Commitment shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement substantially in the form of Exhibit Q (appropriately completed) (each an “Incremental Commitment Agreement”), with the effectiveness of such increase and Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Eligible Transferee providing such Incremental Commitment if such consent would be required under Section 14.04 for an assignment of Loans or Commitments, as applicable, to such Eligible Transferee;
(ii) the applicable Increased Facility Closing Date; provided that immediately prior Borrower and each Credit Party shall have delivered such amendments, modifications and/or supplements to and after giving effect to any such increase the Credit Documents as are necessary or in the Revolving reasonable opinion of the Administrative Agent, desirable to insure that the additional Obligations to be incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Security Documents and the Guaranties;
(iiii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such date pursuant to the Incremental Commitments are permitted by the terms of the outstanding Indebtedness of the Borrower and its Subsidiaries;
(iv) if reasonably requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrower reasonably satisfactory to the Administrative Agent covering such matters as the Administrative Agent may reasonably request;
(v) the Borrower and the other Credit Parties shall deliver to the Administrative Agent such other officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably request;
(vi) the Parent shall be in compliance with the covenants set forth in Sections 10.07 through and including 10.10, in each case determined on a pro forma basis as of the most recently ended Test Period (or, if no Test Period cited in Sections 10.07 through and including 10.10 has concluded, the covenants in Sections 10.07 through and including 10.10 for the first Test Period cited in such Sections shall be satisfied as of the last four quarters then ended), in each case, as if such Incremental Commitments had been outstanding and fully utilized on the last day of such fiscal quarter of the Parent for testing compliance therewith, certified as such by the Parent in writing, and the Administrative Agent shall have received evidence of such compliance;
(vii) the Administrative Agent shall have received a certificate, dated the Incremental Availability Date, and signed on behalf of the Borrower by the chief executive officer, the president or any vice president of the Borrower certifying on behalf of the Borrower that all of the conditions set forth in Sections 6.09, 6.10 and 7.01 have been satisfied on such date;
(viii) no Default or Event of Default shall have occurred exist at the time of a request for Incremental Commitments under any Tranche, upon the effectiveness of any Incremental Commitment Agreement or at the time that an Incremental Loan is made or a Letter of Credit is issued pursuant to such Tranche (and be continuing and after giving effect thereto); and
(iiix) each all of the representations and warranties made by any Loan of each Credit Party set forth in or pursuant to the Loan Documents Section 8 and in each other Credit Document shall be true and correct in all material respects at the time of a request for Incremental Commitments under any Tranche, upon the effectiveness of any Incremental Commitment Agreement and at the time that an Incremental Loan is made or a Letter of Credit is issued pursuant to such Tranche (orand after giving effect thereto) (in each case, if except to the extent such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date date, in which case they shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing DateOther than as set forth in this Agreement, Incremental Loans made pursuant to any Tranche of Incremental Commitments shall have the Borrowers shall (A) prepay same terms as the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Initial Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that the “Applicable Margin” with respect to subclauses (A) a Tranche of Incremental Commitments and (B), (x) the prepayment to, and borrowing from, any existing Lender Letters of Credit issued under such Tranche shall be effected a percentage per annum agreed to by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) Borrower and the New Lenders shall make and receive payments among themselvesLender providing such Incremental Commitments as set forth in the relevant Incremental Commitment Agreement.
(d) On the effective date of any Incremental Commitment Increase pursuant to this Section 2.13, the Borrower shall, in a manner acceptable to coordination with the Administrative Agent, so that, after giving effect thereto, repay outstanding Incremental Loans of the Revolving Loans are held ratably by such existing Lenders under each Tranche of Incremental Commitments and New incur additional Loans under each such Tranche from certain other new Lenders, in each case to the extent necessary so that all of the Lenders under such Tranche participate in accordance with each outstanding Borrowing of Incremental Loans and issuance of Letters of Credit under such Tranche pro rata on the basis of their respective Revolving Incremental Commitments of under such Lenders Tranche (after giving effect to such any increase in the Total Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).Section 2.13
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Incremental Commitments. (a) The Borrowers Pursuant to and any one or more Lenders in accordance with Section 2.14 of the Credit Agreement, effective as of the Fourth Amendment Effective Date (including New Lenders) may from time to time prior immediately after giving effect to the Initial Revolving Termination Date agree that such Lenders amendments to the Credit Agreement effected by Section I hereof), the Borrowers shall makeincur, obtain or increase and each Incremental Lender hereby agrees to provide, Incremental Commitments in an amount equal to the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing set forth next to such Incremental Lender’s name in Annex A hereto and delivering on identical terms to the Administrative Agents an Increased Facility Activation Notice specifying existing Revolving Credit Commitments under the Existing Credit Agreement on the date hereof.
(b) The Incremental Commitments shall be subject to the provisions of the Existing Credit Agreement and the other Loan Documents, as modified and supplemented by this Amendment. On the Fourth Amendment Effective Date (immediately after giving effect to the amendments to the Credit Agreement effected by Section I hereof), subject to the terms and conditions set forth herein, for all purposes of the Loan Documents, (i) the amount of such increase each Incremental Commitment shall constitute a “Revolving Credit Commitment” and (ii) each Incremental Lender shall be a “Lender” and a “Revolving Credit Lender” and shall have all the applicable Increased Facility Closing Date; provided that rights and obligations of an Existing Revolving Lender (as defined below) holding a Revolving Credit Commitment.
(c) On the Fourth Amendment Effective Date (immediately prior to and after giving effect to any such increase in the Revolving Commitments amendments to the Credit Agreement effected by Section I hereof), (i) no Default or Event each of Default the existing Revolving Credit Lenders immediately prior to the Fourth Amendment Effective Date (each, an “Existing Revolving Lender”) shall automatically and without further act be deemed to have occurred assigned to each Incremental Lender, and each Incremental Lender shall automatically and without further act be continuing deemed to have purchased and assumed, a portion of such Existing Revolving Lender’s participations under the Existing Credit Agreement in outstanding Letters of Credit, Swing Line Loans and Agent Advances, so that after giving effect to each such deemed assignment and assumption and participation, the aggregate outstanding participations under the Credit Agreement in such Letters of Credit, Swing Line Loans and Agent Advances will be held by the Lenders (including each such Incremental Lender) ratably in accordance with their respective Revolving Credit Commitments (including Incremental Commitments) after giving effect to this Amendment and (ii) each of the representations Existing Revolving Lenders shall assign, and warranties made by any Loan Party each Incremental Lender shall purchase and assume, at the principal amount thereof, such interests in or pursuant to the Loan Documents Revolving Credit Loans outstanding on the Fourth Amendment Effective Date as shall be true and correct necessary in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so order that, after giving effect theretoto all such assignments and assumptions, the Revolving Credit Loans are will be held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increaseincluding each Incremental Lender) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their respective Revolving Credit Commitments as so increasedafter giving effect to this Amendment. The Administrative assignments and assumptions contemplated by clause (ii) of the preceding sentence shall be made through the Agent in accordance with the Agent’s instructions to each Lender and each Lender hereby authorizes the Lenders hereby agree that Agent to take any actions as may be necessary or advisable to give effect to the minimum borrowingreallocation of Revolving Credit Loans contemplated thereby.
(d) As of the Fourth Amendment Effective Date, pro rata borrowing and pro rata payment requirements contained elsewhere in this after giving effect to the incurrence of the Incremental Commitments hereunder, the aggregate principal amount of Revolving Credit Commitments outstanding pursuant to the Credit Agreement shall not apply to the transactions effected pursuant to this clause (c)be $225,000,000.
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Incremental Commitments. (ai) The Borrowers and any one or more Lenders may by written notice to the Administrative Agent (including New whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) may request, from time to time prior to (a) the Initial extension of one or more new term loan commitments or one or more increases in any existing term loan commitments (any such new or increased term loan commitment, an “Incremental Term Commitment”) and (b) the extension of one or more new Revolving Termination Date agree that such Lenders shall make, obtain Credit Commitments or increase one or more increases in the amount of their existing Revolving Credit Commitments (eachany such new or increased Revolving Credit Commitment, a an “Incremental Revolving Credit Commitment”), in an aggregate amount (with respect to both Incremental Term Commitments and Incremental Revolving Credit Commitments) not to exceed $100,000,000. Each Incremental Commitment Increaseshall be in an aggregate amount not less than 66 $5,000,000 and integral multiples thereof (or such lesser amount and/or multiples as may be agreed by the Borrowing Agent and the Administrative Agent). Each notice delivered pursuant to this Section 3.1 shall specify (I) the date (the “Increase Effective Date”) by executing and delivering on which the Borrowers propose that the proposed Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date in which such notice is delivered to the Administrative Agents an Increased Facility Activation Notice specifying Agent (iunless otherwise consented to by the Administrative Agent in its discretion), (II) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each total of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Incremental Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected requested by the Borrowers after and (III) the Closing Dateidentity of the banks, financial institutions and other entities to whom the Borrowers propose that any portion of such Incremental Commitments be allocated and the amounts of such allocations, which banks, financial institutions or other entities may or may not be existing Lenders but who shall be Eligible Assignees. No Any existing Lender shall have any obligation approached to participate in any increase described in this paragraph unless it agrees to do so provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion.
(b) , to provide such Incremental Commitment. Any additional bank, financial institution proposed new Lender shall enter into a joinder or other entity which, with the consent of the Parent Borrower agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with such additional Eligible Assignees becoming Lenders and any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increasean Incremental Commitment, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretocollectively, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c“Incremental Lenders”).
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Incremental Commitments. At any time following the earlier of (ax) The Borrowers completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and any one or more Lenders (including New Lendersy) may from time to time 90 days after the Closing Date and prior to the Initial Revolving Termination Date agree Facility Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request an increase to the existing Revolving Facility Commitments (any such increase, the “Incremental Revolving Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental Term Facility Commitments” and together with the Incremental Revolving Facility Commitments, if any, the “Incremental Commitments”), in an aggregate principal amount, collectively, not to exceed the greater of (x) U.S. $50.0 million and (y) U.S. $100.0 million if on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in each case, a lesser amount in integral multiples of U.S. $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the Administrative Agent. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Commitment IncreaseIncremental Term Loans”) by executing and delivering to the Administrative Agents an shall be made on such Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Amount Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and be continuing and Incremental Term Loans; (ii) each of the representations and warranties made by any Loan Party contained in or pursuant to Article III and the other Loan Documents shall be true and correct in all material respects (oron and as of the Increased Amount Date, if except to the extent that such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate specifically refer to an earlier date date, in which case they shall be have been true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding ; (iii) the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, Borrower and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph its Subsidiaries shall be in compliance, on a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (Pro Forma Basis after giving effect to such Commitment IncreaseIncremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans and (Cvii) pay to if the Lenders Applicable Margin for any Incremental Term Loan exceeds the amountsthen applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of (A) such Applicable Margin for the Incremental Term Loans over (B) the Applicable Margin for the Revolving Facility plus 50 basis points being the relevant “Margin Differential”), if anythen each Applicable Margin for the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Margin Differential effective upon the making of the Incremental Term Loan. Each of the parties hereto hereby agrees that, payable under Section 2.15 as a result upon the effectiveness of any such prepayment. Concurrently therewithjoinder agreements in connection with any Incremental Commitments as described in the preceding sentence, the Lenders this Agreement shall be deemed amended to have adjusted their participation interests in any outstanding Letters the extent (but only to the extent) necessary to reflect the existence and terms of Credit so that such interests are held ratably in accordance with their Revolving the Incremental Commitments as so increased. The and the Incremental Term Loans evidenced thereby, and the Administrative Agent, the Collateral Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Borrower may revise this Agreement shall to evidence such amendments without the consent of any Lender that is not apply to the transactions effected pursuant to this clause (c)providing such Incremental Commitments or Incremental Term Loans.
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Incremental Commitments. (a) The Borrowers and any may, from time to time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments, as applicable, from one or more Incremental Term Lenders or persons who will become Domestic Revolving Credit Lenders and/or Multicurrency Revolving Credit Lenders (including New Lenders) which may from time include any existing Lender willing to time prior to provide the Initial Revolving Termination Date agree that such Lenders shall makesame, obtain or increase the amount of in their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Dateown discretion); provided that at the time of the incurrence of such Incremental Term Loan Commitments, additional Domestic Revolving Credit Commitments and/or additional Multicurrency Revolving Credit Commitments and immediately prior to and after giving effect thereto and to any such increase in the Revolving Commitments use of the proceeds thereof (iassuming the full utilization thereof), (A) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amountwould result therefrom, and (iiB) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph Senior Secured Leverage Ratio shall be in less than or equal to 2.50 to 1.00; provided further that each such person, if not already a minimum amount Lender hereunder, shall be subject to the approval of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent approval shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto withheld and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Dategiven or withheld within three Business Days and, if withheld, the Borrowers reason therefor shall be specified in writing promptly thereafter). Such notice shall set forth (Ai) prepay the outstanding amount of the Incremental Term Loan Commitments, additional Domestic Revolving Loans Credit Commitments and/or additional Multicurrency Revolving Credit Commitments being requested (if any) which shall be in fullminimum increments of $1,000,000 and a minimum amount of $5,000,000 (or, (B) simultaneously borrow new Revolving Loans hereunder in an minimum increments of €1,000,000 and a minimum amount equal of €5,000,000, in respect of commitments to such prepayment (in the case of Eurodollar make additional Euro Term Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (xii) the prepayment todate on which such Incremental Term Loan Commitments, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the additional Domestic Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).Credit
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Sources: Credit Agreement (Terex Corp)
Incremental Commitments. The Company may, upon five (a5) The Borrowers and any Business Days’ notice to the Administrative Agent, increase the Revolving Loan Commitment amount by adding one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain lenders or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in increasing the Revolving Commitments (i) no Default or Event Loan Commitment of Default shall have occurred and be continuing and (ii) each of a Lender, determined by the representations and warranties made by any Loan Party Company in or pursuant its sole discretion, subject to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, Swingline Lender and Issuing Banks (x) each increase effected pursuant such consent not to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects which lender or lenders are willing to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement commit to such increase (eacheach such lender, a “New Lender SupplementLender,” and such commitment, the “Incremental Commitment”); provided, substantially in however, that (i) the form Company may not elect any Incremental Commitment after the occurrence and during the continuance of Exhibit Han Event of Default, whereupon such bankincluding, financial institution or other entity without limitation, any Event of Default that would result after giving effect to any Incremental Commitment, (a “New Lender”ii) shall become a Lender for all purposes and to the same extent as if originally a party hereto and each Incremental Commitment shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal not less than $10,000,000 or an integral multiple of $5,000,000 in excess thereof, (iii) after giving effect to such prepayment all Incremental Commitments the aggregate Revolving Loan Commitments shall not exceed the Dollar Equivalent of $5,000,000,000 and (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(siv) ending on the date(s) effective date of any then outstanding Interest Period(s))the Incremental Commitment, as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)each New Lender will, (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent applicable, purchase at par that any portion of outstanding Loans of the amount prepaid to other Lenders or take such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to other actions as the Administrative Agent, so that, after giving effect thereto, Agent may determine to be necessary to cause the Revolving Loans are and funded and unfunded participations in Letters of Credit and Swingline Loans to be held ratably pro rata by such existing Lenders and New the Lenders in accordance with the respective Revolving Commitments Loan Commitments. An Incremental Commitment shall become effective upon the execution by each applicable New Lender of a counterpart of this Agreement and delivering such Lenders (after giving effect to such Commitment Increase) and (C) pay counterpart to the Lenders Administrative Agent. Over the amountsterm of the Agreement the Company shall increase the Revolving Loan Commitments no more than five (5) times. Notwithstanding anything to the contrary in this Agreement, if any, payable under any Incremental Commitment made pursuant to this Section 2.15 as a result 2.14 may be effected by adding one or more tranches of any such prepayment. Concurrently therewith, the Lenders Revolving Loan Commitments that are denominated in an Alternative Currency and/or term loan commitments (which shall be deemed to have adjusted their participation interests in any outstanding Letters be “Revolving Loan Commitments” for purposes of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent this Section 2.14 (other than clause (iv) above)), and the Lenders hereby agree that any amendment required to implement an Incremental Commitment may be effected by the minimum borrowingconsent of the Company and only those Lenders that agree to participate in any such tranche, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall provided that the aggregate amount of the commitments do not apply exceed the Dollar Equivalent of $5,000,000,000 at any time. Notwithstanding anything to the transactions effected contrary herein, no Lender shall be required to increase its Commitment pursuant to this clause (c)Section 2.14.
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Incremental Commitments. (a) The Borrowers and Borrower may at any one time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by notice to the Initial Revolving Termination Date agree that such Lenders Administrative Agent (whereupon the Administrative Agent shall makepromptly deliver a copy to each of the Lenders), obtain request one or increase more increases in the amount of their the Revolving Credit Commitments (eacheach such increase, a “Revolving Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date); provided that immediately prior to and after giving effect to both at the time of any such increase in request and upon the Revolving Commitments (i) effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents exist. Each Revolving Commitment Increase shall be true and correct in all material respects an aggregate principal amount that is not less than $25,000,000 (or, provided that such amount may be less than $25,000,000 if such representations and warranties are qualified by materiality, amount represents all remaining availability under the limit set forth in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier datethe next sentence). Notwithstanding anything to the foregoing, (i) without the consent of the Required Lenderscontrary herein, the aggregate amount of incremental the Revolving Commitments obtained after Commitment Increases shall not exceed $150,000,000. Each notice from the Closing Date Borrower pursuant to this paragraph Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that each of the Administrative Agent and each Issuing Bank shall have consented (such consent not exceed to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 9.04(b) for an assignment of Commitments to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the Maximum Permitted case of a Revolving Commitment Increase Amountto be provided by an existing Revolving Credit Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by, and (ii) in form and substance reasonably satisfactory to, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (x) each increase effected it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment), the receipt by the Administrative Agent of legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Loans made pursuant to the Revolving Commitment Increases for any purpose not prohibited by this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing DateAgreement. No Lender shall have be obligated to provide any obligation to participate in any increase described in this paragraph Revolving Commitment Increases unless it agrees so agrees. Upon each increase in the Commitments pursuant to do so in its sole discretion.
(b) Any additional bankthis Section, financial institution or other entity which, with the consent each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Parent Borrower and the Administrative Agent Revolving Commitment Increase (which consent shall not be unreasonably withheld), elects to become each a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Revolving Commitment Increase Lender”) shall become in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits portion of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans such Lender’s participations hereunder in an amount equal to outstanding Letters of Credit and Protective Advances such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect theretoto each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations in Protective Advances held by each Lender (including each such Revolving Commitment Increase Lender) will equal such Lender’s Applicable Percentage and (b) if, on the date of such increase, there are any Revolving Loans are held ratably outstanding, such Revolving Loans shall on effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by such existing Lenders accrued interest on the Loans being prepaid and New Lenders any costs incurred by any Lender in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)the immediately preceding sentence.
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Incremental Commitments. (a) The Borrowers and any Borrower may, by written notice to the Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Term Loan Amount from one or more Lenders Incremental Term Loan Lenders, each of which must be (including New Lendersi) may from time to time prior an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Initial Revolving Termination Date agree that such Lenders Agent. Such notice shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such increase lesser amount equal to the remaining Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). The Borrower may, by written notice to the Agent from time to time, request additional Revolving Loan Commitments in an amount not to exceed the Additional Revolving Loan Commitment Amount from one or more Persons, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall not be unreasonably withheld or delayed) to the Agent and each L/C Issuer. Such notice shall set forth (i) the amount of the additional Revolving Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Additional Revolving Loan Commitment Amount) and (ii) the applicable Increased Facility Closing Date; provided that immediately prior date on which such additional Revolving Loan Commitments are requested to and become effective (which shall not be less than 10 Business Days nor more than 60 days after giving effect to any the date of such increase in the notice). The Borrower will first seek additional Revolving Loan Commitments from existing Lenders (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations which shall be entitled to agree or decline to participate in its sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and warranties made by any other institutional lenders who will become Revolving Lenders in connection therewith. The Borrower and each Person providing an additional Revolving Loan Party in or pursuant Commitment shall execute and deliver to the Agent an Additional Revolving Loan Documents Commitment Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the additional Revolving Loan Commitment of each such Person. The terms and provisions (including pricing and maturity date) of such additional Revolving Loan Commitments and Revolving Loans made under such additional Revolving Loan Commitments shall be true substantially similar to those of the existing Revolving Loan Commitments and correct Revolving Loans, respectively.
(b) The Borrower will first seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in all material respects (orits sole discretion) and, if additional commitments are needed, from additional banks, financial institutions and other institutional lenders who will become Incremental Term Loan Lenders in connection therewith. The Borrower and each Incremental Term Loan Lender shall execute and deliver to the Agent an Incremental Term Loan Assumption Agreement and such representations other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Loan Lender. The terms and warranties are qualified by materiality, in all respects) on and as provisions of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date the Incremental Term Loans shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) substantially consistent to those of the Term Loans except as of such earlier date)otherwise set forth herein. Notwithstanding Without the foregoing, (i) without the prior written consent of the Required Lenders, (i) the aggregate amount final maturity date of incremental Revolving Commitments obtained after any Other Term Loans shall be no earlier than the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase AmountTerm Loan Maturity Date, and (ii) without the consent average life to maturity of the Administrative Agent, Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial yield on such Other Term Loans (as determined by the Agent to be equal to the sum of (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 the margin above the LIBOR based interest rate on such Other Term Loans and (y) no more than five Increased Facility Closing Dates may be selected by if such Other Term Loans are initially made at a discount or the Borrowers after Lenders making the Closing Date. No Lender shall have same receive a fee (excluding any obligation arrangement, structuring and underwriting fees paid or payable to participate in any increase described in this paragraph unless it agrees to do arranger or its Affiliates) directly or indirectly from the Borrower or any Subsidiary for doing so in its sole discretion.
(b) Any additional bankthe amount of such discount or fee, financial institution or other entity which, with the consent expressed as a percentage of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld)Other Term Loans, elects being referred to become a herein as “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender SupplementOID”), substantially the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four) exceeds the Applicable Margin then in effect for LIBOR Rate Loans that are Term Loans, Revolving Loans or prior Other Term Loans by more than 50 basis points (the form amount of Exhibit Hsuch excess above 50 basis points being referred to herein as the “Yield Differential”), whereupon then the Applicable Margin then in effect for such bankTerm Loans, financial institution or other entity (a “New Lender”) Revolving Loans and prior Other Term Loans shall become a automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Agent shall promptly notify each Lender for all purposes and as to the same extent as if originally a party effectiveness of each Incremental Term Loan Assumption Agreement and each Additional Revolving Loan Commitment Assumption Agreement. Each of the parties hereto and hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, this Agreement shall be bound by and entitled deemed amended to the benefits extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby or the additional Revolving Loan Commitment and additional Revolving Loans evidenced thereby, as applicable, and the Agent and the Borrower may revise this AgreementAgreement to evidence such amendments.
(c) Upon each Increased Facility Closing DateNotwithstanding the foregoing, no Incremental Term Loan Commitment or additional Revolving Loan Commitment shall become effective under this Section 1.12 unless (i) on the date of such effectiveness, the Borrowers conditions set forth in paragraph (b) of Section 2.2 shall be satisfied and the Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (Aii) prepay except as otherwise specified in the outstanding applicable Incremental Term Loan Assumption Agreement or Additional Revolving Loan Commitment Assumption Agreement, the Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and consistent with those delivered on the Closing Date under Section 2.1, (iii) after giving effect, as applicable, to such Incremental Term Loan Commitment and the Incremental Term Loans to be made thereunder or such additional Revolving Loan Commitment and the Revolving Loans to be made thereunder (if any) in full, (B) simultaneously borrow new assuming the entire amount of such additional Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)Loan Commitment is funded), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B)in each case, the application of the proceeds therefrom, (x) the prepayment toSenior Leverage Ratio shall, on a pro forma basis as of the last day of the last Fiscal Quarter for which financial statements are required to be delivered hereunder, not exceed the maximum Senior Leverage Ratio then permitted under Section 6.2 less 0.25:1.00 and borrowing from, any existing Lender shall be effected by book entry (iv) to the extent that any portion reasonably necessary to maintain the continuing priority of the amount prepaid Lien of the Mortgages as security for the Obligations, as determined by the Agent in its reasonable discretion (x) the applicable Credit Party to such Lender will be subsequently borrowed from such Lender any Mortgages shall have entered into, and delivered to the Agent, at the direction and in the sole discretion of the Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Agent, (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders Borrower shall make and receive payments among themselves, in a manner acceptable have caused to be delivered to the Administrative AgentAgent for the benefit of the Secured Parties an endorsement to the title insurance policy, so that, after giving effect thereto, date down(s) or other evidence reasonably satisfactory to the Revolving Loans Agent insuring that the priority of the Lien of the Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are held ratably no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the Mortgages (other than those expressly permitted by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment IncreaseSection 5.1) and (Cz) pay the Borrower shall have delivered, at the request of the Agent, to the Lenders Agent and/or all other relevant third parties all other items reasonably necessary to maintain the amountscontinuing priority of the Lien of the Mortgages as security for the Obligations.
(d) Each of the parties hereto hereby agrees that the Agent may, if anyin consultation with the Borrower, payable take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Rate Loans that are Term Loans to be converted into a Borrowing of Base Rate Loans that are Term Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding Borrowing of LIBOR Rate Loans that are Term Loans on a pro rata basis. Any conversion of LIBOR Rate Loans that are Term Loans to Base Rate Loans that are Term Loans required by the preceding sentence shall be subject to Section 10.4. If any Incremental Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Rate Loans that are Term Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.15 as a result 1.8(a) required to be made after the making of any such prepayment. Concurrently therewith, the Lenders Incremental Term Loans shall be deemed ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to have adjusted their participation interests the extent necessary to avoid any reduction in the amortization payments to which the Term Loan Lenders were entitled before such recalculation. Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of each additional Revolving Loan Commitment, (i) Revolving Loans made under such additional Revolving Loan Commitment are included in each Borrowing of outstanding Letters of Credit so that such interests are held Revolving Loans on a pro rata basis and (ii) the Lender providing each additional Revolving Loan Commitment shares ratably in accordance with their the aggregate Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Pro Rata Outstandings.
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Sources: Credit Agreement (Metropolitan Health Networks Inc)
Incremental Commitments. (a) The Borrowers So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request, the Borrower may, with the consent of, and in coordination with, the Agent, request at any one or more Lenders (including New Lenders) may time and from time to time after the Amendment Effective Date and prior to the Initial Revolving Termination Date agree date the Total Commitments have been terminated, that such the Lenders shall makeprovide Incremental Commitments and, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering subject to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase applicable terms and (ii) the applicable Increased Facility Closing Dateconditions contained in this Agreement, make Loans pursuant thereto; provided that immediately prior to it being understood and after giving effect to any such increase in the Revolving Commitments agreed, however, that:
(i) no Default or Event Lender shall be obligated to provide an Incremental Commitment as a result of Default any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion (such discretion to be exercised reasonably) to provide an Incremental Commitment and executed and delivered to the Agent an Incremental Commitment Agreement in respect thereof as provided in Clause 2.3(b), such Lender shall have occurred and not be continuing and obligated to fund its participation in any Loan in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to Clause 2.3(b) below;
(ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to no Lender may provide an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) Incremental Commitment without the consent of the Required all other Lenders, the aggregate amount ;
(iii) each provision of incremental Revolving Commitments obtained after the Closing Date an Incremental Commitment on a given date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (iiClause 2.3(b) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph below shall be in a minimum aggregate amount (for all Lenders) of at least $25,000,000 and in integral multiples of $25,000,000 in excess thereof;
(yiv) no more than five Increased Facility Closing Dates may the aggregate amount of all Incremental Commitments provided pursuant to Clause 2.3(b) below, shall not exceed $200,000,000; and
(v) all Loans made pursuant to Incremental Commitments (and all interest, fees and other amounts payable thereon) shall be selected by obligations under this Agreement and the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretionother applicable Finance Documents.
(b) Any additional bankAt the time of the provision of an Incremental Commitment pursuant to this Clause 2.3, financial institution or other entity whichthe Borrower, the Guarantors, the Lenders and the Agent shall execute and deliver to the Agent an Incremental Commitment Agreement, with the consent effectiveness of such Incremental Commitment to occur on the Parent Borrower and date (the Administrative Agent “Incremental Commitment Date”) set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (which consent shall not w) all fees required to be unreasonably withheld), elects to become a “Lender” under this Agreement paid in connection with therewith at the time of such effectiveness shall have been paid (including, without limitation, any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution agreed upon up-front or other entity (a “New Lender”) shall become a Lender for all purposes and arrangement fees owing to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of Agent or any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (BAffiliate thereof), (x) the prepayment toall Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Clause 2.3(b) shall have been satisfied, and borrowing from(z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, any existing Lender and at such time, (i) the Commitments under, and for all purposes of, this Agreement shall be effected increased by book entry the aggregate amount of such Incremental Commitments, and (ii) to the extent that requested by any portion of Lender, Notes will be issued, at the amount prepaid Borrower’s expense, to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c)Lender.
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Incremental Commitments. (a) The Borrowers and any one or more Lenders (including New Lenders) may from time to time prior to the Initial Revolving Termination Date agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments (each, a “Commitment Increase”) by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New DocID \\DC - 036150/000014 - 15261895 v6 Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if any) in full, (B) simultaneously borrow new Revolving Loans hereunder in an amount equal to such prepayment (in the case of Eurodollar Loans, with Eurodollar Base Rates equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s)), as applicable (as modified hereby); provided that with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from, any existing Lender shall be effected by book entry to the extent that any portion of the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (c).
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Incremental Commitments. (a) The Borrowers and Borrower Representative may, on behalf of any one Borrower, at any time or more Lenders (including New Lenders) may from time to time prior after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (i) one or more new commitments which may be of the Initial Revolving Termination Date agree that such Lenders shall makesame Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, obtain the “Incremental Term Commitments”) and/or (ii) one or increase more increases in the amount of their the Revolving Commitments (each, a “Revolving Commitment Increase”) by executing or a new Class of Revolving Commitments (collectively with any Revolving Commitment Increase, the “Incremental Revolving Credit Commitments”, and, collectively with any Incremental Term Commitments, the “Incremental Commitments”), in an aggregate principal amount not to exceed the sum of (A) the greater of (1) $178,800,000218,900,000 and delivering to (2) 100% of Consolidated Adjusted EBITDA for the Administrative Agents an Increased Facility Activation Notice specifying most recently completed Test Period (icalculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the amount of such increase Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (iithe “Fixed Incremental Amount”) plus (B) an unlimited amount (the applicable Increased Facility Closing Date; provided that immediately prior to and “Incremental Incurrence-Based Amount”), so long as on a Pro Forma Basis after giving effect to the incurrence of any such increase in Incremental Loans (assuming the Revolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate full amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Maximum Permitted Increase Amount, and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Parent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially such Indebtedness in the form of Exhibit Ha revolving credit facility is drawn) (without netting the cash proceeds of any borrowing under any such Incremental Term Loans or Incremental Revolving Credit Commitment not promptly applied for the specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), whereupon such bankthe Total Net Leverage Ratio does not exceed 4.50:1.00 as of the last day of the most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), financial institution or other entity the “Incremental Ratio Debt Basket”), plus (a “New Lender”C) shall become a Lender for all purposes any voluntary prepayments and buybacks (limited to the same extent as if originally a party hereto actual amount of cash paid) of the Initial Term Loans and shall be bound by and entitled to the benefits Incremental Term Loans, voluntary prepayments of this Agreement.
(c) Upon each Increased Facility Closing Date, the Borrowers shall (A) prepay the outstanding Revolving Loans (if anyto the extent accompanied by permanent commitment reductions thereto), voluntary prepayments and buybacks (limited to the actual amount of cash paid) in fullof any other Term Loans, (B) simultaneously borrow new Revolving Loans hereunder or other Indebtedness, in an amount equal to such prepayment each case, secured on a pari passu basis with the Initial Term Loans (in the case of Eurodollar Loansany prepayment of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) so long as the relevant prepayment was not already included in this clause (C), and payments utilizing the yank-a-bank provisions of the Credit Documents, in each case, prior to such time and other than any such voluntary prepayments (and commitment reductions) and buybacks to the extent financed with Eurodollar Base Rates the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) plus (D) in the case of any Incremental Term Commitments or Incremental Revolving Credit Commitments that effectively extend the maturity date of any Facility, an amount equal to the outstanding Eurodollar Base Rate and with Interest Period(s) ending on the date(s) portion of any then outstanding Interest Period(s)such Facility that will be replaced by such Incremental Term Commitments or Incremental Revolving Credit Commitments (this clause (D), as applicable the “Effective Extension Incremental Amount”) (as modified hereby); provided that with respect to subclauses the sum of (A) and ), (B), (xC) and (D) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided that, for purposes of the foregoing, (I) the prepayment toBorrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Fixed Incremental Amount, the Prepayment Amount and the Effective Extension Incremental Amount, and borrowing fromif the Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any existing Lender shall be effected by book entry to incurrence of Indebtedness under the extent Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Commitments incurred other than under the Incremental Incurrence-Based Amount shall be automatically re-designated as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount on a pro forma basis at any time subsequent to the incurrence of such Incremental Commitment (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount, the Effective Extension Incremental Amount, and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount prepaid to such Lender will be subsequently borrowed from such Lender and (y) the existing Lenders (including existing Lenders providing a Commitment Increase, if applicable) and the New Lenders shall make and receive payments among themselves, in a manner acceptable to the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are held ratably by such existing Lenders and New Lenders in accordance with the respective Revolving Commitments of such Lenders (after giving effect to such Commitment Increase) and (C) pay to the Lenders the amounts, if any, payable under Section 2.15 as a result of any such prepayment. Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit Indebtedness so that such interests are held ratably in accordance with their Revolving Commitments as so increased. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (credesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)